Former care worker Scott Watts
took his employers to tribunal when they sacked him, claiming his HIV posed
a ‘major’ risk to clients. After winning his case, Scott is finally
able to enjoy some Christmas cheer
Words Chris O’Connor
Images Piers Allardyce
When
30-year-old Scott Watts was sacked from his carer’s job in October last
year after telling his employers he was HIV positive, he had a choice: walk
away and put it behind him or make a stand.
His then employers, High Quality Lifestyle Ltd (HQL), had deemed that Scott
posed a ‘major’ risk to their clients, young men with challenging
behaviour. HQL argued there was a likelihood Scott could be bitten by clients
who would then be infected.Thankfully for all HIV positive workers, Scott
decided he couldn’t let the matter lie. This September he won a resounding
victory against his employers at an employment tribunal in Kent.
After a year of anxiety and stress, the tribunal upheld Scott’s claim
of disability-related discrimination against HQL. It also ruled that the company
had both failed to maintain Scott’s confidentiality and to make reasonable
adjustments to take account of his medical conditions as required under the
Disability Discrimination Act (DDA).
“If the decision had gone the other way, it would have had serious repercussions
for many HIV positive people working as social workers, teachers, police and
prison officers, doctors and nurses,” said Theresa Mimnagh, legal consultant
for Duncan Lewis & Co, who represented Scott.
From ketchup to care home
Scott trained as a nurse at London’s Guy’s and St Thomas’
Hospital in London. After qualifying, he left nursing to become a manager
at McDonalds. “They offered me a lot more money than I would have got
as
a trainee nurse,” Scott laughs. At 25, he was hit with an HIV positive
diagnosis. “It was a shock. I was diagnosed through the blood transfusion
service.” He returned to work at McDonalds and told his boss. “Their
reaction was: ‘Are you OK? And so what?’ It made no difference
to my job.”
After suffering a series of bad side effects from his first HIV drug regimen,
Scott returned to his home town of Dover in Kent where he applied for a job
as a carer with HQL. It was an attractive proposition. HQL had over 100 employees
in six care homes catering for youngsters mainly with Autistic Spectrum Disorder.
The company were offering £7.60 an hour, not bad for the social care
sector. Scott, in the words of his boyfriend, is a “6ft 5in softie”.
So he was unfazed by the prospect of caring for young men who could sometimes
lose their temper and throw furniture around.
Application answers
“The application form didn’t mention HIV,” explains Scott.
“So when it asked if I took medication regularly I answered no, because
I was on a treatment interruption at the time. The form also asked if I suffered
from any other ailments. Again, I answered no as I really don’t think
of HIV as an ‘ailment’. I also understood I had no obligation
to mention HIV at all.” Scott started work at an HQL care home in March
2004. “I never thought I would, but one week into the job I really loved
it. The guys were great to work with. Taking the service users out was the
best part of the job. I was promoted to acting team leader and they were looking
to fast-track me to an NVQ and move up to service manager.”
Threats led to disclosure
At this point, things started to go wrong. “My ex-partner threatened
to tell my employer I was HIV positive. It had been a volatile relationship;
a bit of a ‘bunny boiler’ situation. I thought: ‘I’m
not going to run the risk, it’s got to be better if it comes from me’.”
Scott also felt he should disclose because he was now back on HIV therapy.
“After I told my area manager I felt relieved. She was very encouraging.
I gave her lots of information about HIV and even offered to train staff about
HIV awareness.” Scott remembers her saying, “It shouldn’t
be a problem but I’ll have to check it out.”“I went away
with a weight off my shoulders,” he continues. “I never thought
there would be a problem.” Shortly after, HQL asked permission from
Scott to contact his HIV doctor who responded with a detailed letter explaining
that Scott had a CD4 count of 703, a low viral load and that the risk of occupational
transmission was very small.“If I knew then what I know now I would
have told them to get lost,” says Scott. He was on holiday when he received
a letter from an HQL director asking to meet him to discuss his HIV status.
They had called in a risk assessor to look at whether his status posed any
risk to clients or staff. “I knew they’d made their minds up,”
he says. Scott declined a request from HQL to be able
to disclose his status to local social services and his colleagues.
A negligible risk
Cases of people passing the virus by being bitten are, as Scott likes to put
it, “as rare as rocking horse poo.” There are only a couple of
documented cases of HIV transmission resulting from biting and these involved
severe tissue tearing and damage in addition to the presence of blood. “We
spent ages researching this and couldn’t find a single comparable case,”
he says. Scott pointed out to HQL that the risk of transmission was the same
for most other public sector workers, from railway guards to social workers.
Government had only produced guidelines on the risks of occupational transmission
for doctors, nurses and dentists engaged in invasive procedures.“Because
of my nurse training I always weighed up the risk in my own mind and acted
responsibly. I spoke to THT, clinical nurses and received advice from the
UKC employment team throughout the year. We all came to the same conclusion:
the risk was negligible.”
Breach of confidentiality
On 16 August 2004, Scott was suspended. This was due to his ‘non-disclosure’
on his job application form. His bosses denied him the opportunity to say
farewell to the men he had cared for. A few weeks later, HQL sacked him. Its
risk assessment had concluded that services users at HQL were at a ‘high/major’
risk from transmission and that its employees were at ‘low/medium’
risk. Why did Scott feel HQL had been so single-minded in their pursuit of
his dismissal? “Prejudice, homophobia and small minded ignorance,”
he says.
Dover is a small town and soon word got out about his status. Scott was sure
that HQL had breached his confidentiality. “It felt like everyone knew
what was going on. Somebody even approached my mum in the street about my
condition, which freaked her out.” At that point he and his partner,
David, a former corporal in the British Army, decided they had had enough
and piled their belongings into the back of their car, put a pin in a map
and headed north. Scott now works in catering. He has told his new employers
about his HIV status and they responded: “That’s fine, you have
the management skills; no problem.”
Still, Scott’s experience has left him wary. “One consequence
is that I don’t know whether I can really trust anybody else ever again.”
Taking the case to tribunal
Scott’s solicitors from Duncan Lewis & Co helped him engage QC and
barrister John Paul Waite who took the case pro bono. “We couldn’t
find another case that was comparable and I thought: ‘Hold on a minute,
this is scary. I wasn’t just doing this for myself’.” He
still squirms as he recalls the pressure of the three-day hearing.
“HQL staff told the tribunal that at one stage I had had blood pouring
out of my neck at work. For God’s sake; I am a trained as a nurse, would
I walk around with a wound like that? I felt like a leper, that’s how
they made me feel.” HQL tried to defend themselves against the claim
that they treated Scott less favourably because of his disability. They argued
(unsuccessfully) that they dismissed Scott not because of his disability itself,
but because of the inherent risk of transmission in Scott’s job, which
involved a ‘predictable risk’ of biting. They said they tried
to make ‘reasonable adjustments’ to his job but could offer no
evidence that they had done this.
Scott’s legal team argued successfully that the risk assessment was
flawed because the assessor gave no chance to Scott to put his case. The risk
assessment carried out was for blood-borne diseases including hep C, not just
HIV, and was therefore too general. The tribunal also emphasised that Scott’s
work did not involve ‘exposure prone procedures’. HQL were also
found to have breached confidentiality by inviting people to meetings without
Scott’s consent and that they had dismissed him without properly considering
the information available to them.At the end, the tribunal chair thanked Scott
for making him more informed about HIV.
“I enjoyed that,” says Scott.Scott was at work in his new job
when he got the good news. “I thought: ‘My
God, we won’. Then I thought, ‘No, it’s a moral victory,
but I’m still not sure about the ‘winning’ part’.”
PN contacted HQL for a comment and a spokesperson said they were ‘disappointed’
with the tribunal outcome.
A
landmark result for the future
This landmark case has big implications for employers in this country says
Mark Legister, an employment law expert from Duncan Lewis & Co. “If
employers don’t get their house in order, this area is going to explode,
legally. If they don’t access
specialised HIV knowledge, they are going to get spanked financially.”
Indeed, this is the case for HQL. Scott is still awaiting the outcome of the
‘remedy’ determination in January that will decide how much compensation
he will be awarded. However, that is not his main focus.
“No way was this all about money. I’d rather be diagnosed ten
times over than go through another tribunal. I just want to be Joe Bloggs,
a normal employee. Do you know what? My viral load went down after the court
decision for the first time since this thing started. Things are now moving
in the right direction.”
Disability employment tribunals. Who wins?
According to the Employment Tribunal Service, just four per cent of employment
claims under the DDA result in a victory for the applicant. Research by the
Disability Rights Commission found that three-quarters of applicants who settled
or withdrew their claims mainly did so because of the potential stress and
personal and financial costs of the tribunal process.
• For advice on employment rights and disputes, contact ACAS on 08457
47 47 47, www.acas.org.uk
• For more information on the laws and issues around HIV in the workplace,
check out www.e-pf.org or www.areyouhivprejudiced.org
• Duncan Lewis & Co Solicitors, 0800 740 8081, www.duncanlewis.co.uk
