HIV LEGAL CORNER
MY HIV STATUS WAS REVEALED AT WORK
If your employer discloses your status to
colleagues, there are legal steps you can take to address this breach of confidentiality
Q: I’ve been employed as an accounts assistant for three years.
Last week during a social drink I found out a number of colleagues have been
told that I am HIV positive. I was shocked, as I only informed the HR officer
when I joined the company. I was led
to believe that such information was strictly confidential. I have been so
stressed I have not been to work and my GP has signed me off for two weeks.
What can I do?
Your personal details are confidential and protected not only by the Data
Protection Act 1998 but also by Common Law. An employer therefore is under
a duty not to disclose your details without your consent. You do not say how
your colleagues discovered that you have HIV although it is not hard to guess
how it might have happened. Understandably you feel hurt and betrayed.
In every contract of employment there is a duty on the employer and employee
not to act in a manner which seeks to destroy an implied term of mutual trust
and confidence. The leaking of your condition (whether directly or indirectly)
amounts to a fundamental breach of your contract, which entitles you to bring
the contract to an end and claim constructive unfair dismissal. However you
would be best advised to first raise a written grievance according to your
company’s grievance procedure, which you should find in your company
handbook. A grievance has been defined as a ‘complaint by an employee
about an action, which his employer has taken or is contemplating taking in
relation to him’. Therefore you will need to set out fully how you feel
and the effect the disclosure has had on you. Additionally you should seek
an explanation as to how your colleagues were made privy to your confidential
and sensitive information and to either seek re-assurance that it will not
happen again (if you feel able to continue working at the company) or to put
them on notice that you feel that the trust and confidence has been irreparably
damaged.
The Employment Act 2002 states that if you do not raise a grievance when you
are considering terminating your contract as a result of your employer’s
conduct, you might be prevented from presenting a claim in the employment
tribunal until you do. You also risk having any compensation reduced between
10 to 50 per cent.
Were you in a relationship with any of your colleagues? If so, it may be that
your employer felt they had a duty to tell that person. Employers do have
a duty to take reasonable care to see their employees are not subject to any
unnecessary risk of injury. But this is mainly aimed at industrial injury
incurred during
the normal course of employment. So it’s highly questionable whether
this duty could be extended to the risk of passing HIV to a colleague, particularly
as the virus is transmitted through the mixing of bodily fluids (although
regard might be had to situations where employees are expected to travel together
on business). Even if this duty were extendable to non-industrial injuries,
your employer would still be regarded as in breach of their implied duty of
trust of confidence. This is particularly true in the absence of any further
information or discussion with you regarding your “relationship”
with your colleague and without your consent to disclose your personal details.
In addition your employer may have a further obstacle to overcome, namely
Article 8 of the Human Rights Act 1998 which provides the right to private
life, although it must be kept in mind that this Act has limited protection
as it is only directly applicable against public authorities.
Mark Legister, Duncan Lewis & Co solicitors
• For general non-legal advice on HIV at work, contact Christina Earl
at the UKC’s Employer Trade Union Diversity Development Project, part
of the Ensuring Positive Futures Programme, on 020 7564 2180.
• This column is not intended as legal advice and should not be relied
upon as such. If you are faced with a employment problem whether similar to
the above or otherwise, your are advised to seek specialist legal advice.
• This column is not intended as legal advice and should not be relied
upon as such. If you are faced with a employment problem whether similar to
the above or otherwise, your are advised to seek specialist legal advice.
