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PRACTICAL LEGAL ADVICE: Part one looks at employment issues, housing, disclosure, and the DDA
 illustration by rose hardy |
Where does the law stand on HIV issues? What are the key questions concerning people with HIV who seek legal action or are considering legal recourse? Rose de Freitas gets advice from solicitors working in this area
The majority of HIV-related legal cases currently centre around immigration and nationality (which we'll cover in more depth next month) but there are other areas causing concerns. Housing, employment, harassment, disclosure, and confusion over the Disability Discrimination Act also take prominence. We put the following sample questions from a potential HIV positive client to a panel of solicitors with specialist advice in this area of law.
"I feel I have been harassed by my landlord because I'm HIV positive. Are there any legal rights concerning landlords and anti-social policies?"
Siva Sivapunniyam, Duncan Lewis & Co solicitors: "In the event of harassment by a landlord, the tenant has a statutory right to prevent this harassment irrespective of the HIV issue under the rules of the Protection from Harassment Act 1997. If harassment is simply on the basis of HIV, the affected person should consider obtaining a civil injunction or seeking a restraining order in a criminal court.
Both civil and criminal courts have power to order compensation, but it depends upon the severity of the harassment.
A civil action will be appropriate in the event of serious harassment issues, as it will increase the scope of compensation. However to seek an injunction will require a higher standard of proof/evidence.
I would suggest that anyone with HIV who is harassed by a landlord should immediately consult a solicitor, as a letter before action to the landlord would immediately stop further harassment. Keeping a record of incidents will also assist the solicitor in considering the severity of the harassment."
Catherine Bradley, THT Specialist Advice Centre: "There are legal remedies. There's the Protection from Harassment Act (as mentioned above). You can take out an injunction to restrain harassment.
Generally you need to have had a pattern of instances of being harassed and some concrete evidence - a written statement which would help your case: medical report maybe, or threatening letters. But there are not many cases of harassment from landlords. Neighbour disputes are much more common.
Too much noise is often cited (HIV may be a related issue), but there are arguments on both sides. Landlords take people to court too if they feel tenants are harassing others. Remember though, legal remedies are not quick and they are not the most effective in this area. They are also costly, although you might be eligible for public funding. But it isn't necessarily the most effective method of achieving a constructive outcome. Some landlords suggest mediation to deal with disputes. Neighbour harassment is often used to get a change of housing. This is a slow procedure but it can be achieved.
What's changing in the law now, with regard to housing, is around succession issues: giving gay couples more rights so that co-habitants, like heterosexual couples, can succeed to a tenancy if a tenant dies. These days more forward-thinking housing associations and public sector/authority landlords are incorporating succession rights in their policies."
"If I'm not on housing benefit, but am in supported housing and decide to go back to part-time work, who's responsible for paying my support - me? Should I opt out of support or go into other assisted housing?"
Kathy Meade, THT Specialist Advice Centre (SAC): "Most people living in supported housing have tenancy agreements which state clearly if their landlord is responsible for providing support services in addition to housing management.
The first step then is to check your tenancy agreement to see what it says about your obligations.
If you are obliged to pay for support charges under your tenancy agreement, then any failure to do so would be a breach of your tenancy agreement and your landlord could take action to obtain possession of your home. You could not opt out of paying for support without the written agreement of your landlord. If there is no clear reference to support charges in your tenancy agreement then you may not be liable.
If you do not need/want support then you should not sign such an agreement. If you are unsure about your obligations, you should then seek legal advice.
If you get Housing Benefit, Supporting People will cover your support charges. If you do not receive Housing Benefit then Supporting People may need to assess your income/savings to decide what contribution, if any, you have to pay. Any earnings will be ignored in this assessment but other income will count. Any disability-related expenses should be considered. You should contact your local Supporting People team to obtain a copy of their charging policy.
Paying for support charges by people in supported housing has become confusing and complicated since the introduction of the Supporting People scheme and big increases recently in support charges. Under this scheme, rent and support charges are now treated separately. For people on low incomes, housing benefit continues to cover the rent. For everyone, the support charges come under the new Supporting People funding regime. Local authorities administer the scheme and each has its own charging policies."
"I don't know whether to disclose my HIV status on my medical form when applying for a new job? I'd rather not, but if I don't disclose and then something comes up and my employer finds out about my status I worry I could lose my job. What's the legal standing on this?"
Marcia McFarlane, THT SAC: "My advice is that within certain professions 'due regard' to disclosure is important. But I have to say this hasn't been a hugely common issue for my clients.
Legally an employer can ask anything it wants on a form. What the applicant does with the form is up to them. There is no legal position on this.
But if you mislead your employer, ie choose to lie about your HIV status, and at a later date you get ill and need time off and the truth comes out, your employer may use this against you if he/she feels you lied on your form. How likely your employers are to succeed in proving they have been misled, and therefore justified in dismissing you, has not yet been tested legally in the courts.
Equally, there is no legal authority that says an employer is not justified in dismissing you for failure to disclose or lying.
It depends on the profession too really. For example, a nurse who does internal procedure or surgery work in her job will be asked to disclose if she or he has an infectious disease. If the employee has lied on the required forms, there would be more of a serious case for misleading the employer (with risks attached) and it would be more reasonable for the employer to consider dismissal, than say for a cleaner or admin worker who didn't disclose in the same way."
Mitchell Springer, Duncan Lewis & Co: "There should be some mutual trust and confidence between an employer and his/her employee and an employer could argue that lying or not disclosing on such a form could imply a lack of trust in the working relationship. But it is really up to the applicant how they want to fill in the form. And whether it's just a standard form or you actually have to fill in a declaration. It matters what kind of contract you have with your employer too.
I would advise the prospective employee try to find out what their future employer's policy is around disability and also to check the disciplinary handbook if possible. I would think it unlikely that an employer would go as far as to dismiss someone on the grounds of failing to disclose status but should give the employee an opportunity to justify their failure to disclose if the truth did come out at a later date.
It would seem wholly unfair just to dismiss the employee because he failed to fill in the form a certain way because of concerns of confidentiality. A fair employer would be likely to give the employee the opportunity to explain his/her fears for confidentiality."
"What is the official legal situation around HIV and sick leave in the workplace? How much time could I take off sick if I have periods of illness before my employers would be legally entitled to issue me a warning? Is there an official procedure?
Marcia McFarlane, THT SAC: "The Disability Discrimination Act (DDA) has a flexible approach to concerns of medical attention. Employers can't really insist that you're fit or not fit to work. It's a matter for your doctor. Your employer would need to demonstrate that they're justified to issue a warning, but again it depends on the profession.
If you're a senior manager and you have to take a long time off sick (maybe months) then perhaps your employer would be more justified in saying they needed to get someone else in. But it's different if you're a secretary who forms part of a typing pool where it would be easy for someone to provide cover. I haven't come across a case of unfair dismissal in this instance."
Mitchell Springer, Duncan Lewis & Co: "You'd have to look at the context of what sick leave entitlements were granted in the employer's handbook and in what instances it lists that they'd be entitled to take disciplinary action for unacceptable sick leave. In most cases, you'd get a warning first anyway, otherwise you could claim for unfair dismissal or breach of contract."
"Am I disabled if I'm HIV positive?" I've heard that you have to be symptomatic to be eligible for disability status under the Disability Discrimination Act. What does this mean exactly? Is the law going to change?
Marcia McFarlane, THT SAC: "Firstly the issue of DDA clarification is distinct from what you're entitled to with regard to disability benefits. I can't answer on the latter issue.
As for the DDA, you are covered by this Act at present if you have a progressive condition and you can show that you have suffered from impairment. In effect, that you have a symptomatic condition. HIV obviously falls within this. But you have to prove that at some time you have shown symptoms of illness from your condition and these have marred your day-to-day activities.
Until recently, the Act only covered symptoms from diagnosis and not from HIV treatments. The good news is that this aspect has changed now. There has been a recent Court of Appeal ruling that helps people with side effects on treatments. You're now covered by the DDA if you suffer badly from side effects on HIV treatments, in other words these symptoms do qualify you to fall under the protection of the Act.
This change will also be supported by other changes due to occur in the Regulations to the Act in October 2004. The changes affect cancer "and other progressive conditions" which include HIV. You will subsequently be classed as being disabled from the point of diagnosis - not from point of being symptomatic.
Aside from this, the other changes that will occur in 2004 are that certain exclusion areas will not be part of the Act.
Currently if an employer only has 15 employees then he/she can discriminate against his/her staff under the DDA. This exclusion won't exist when the regulations change in 2004. The police force, prison service and fire brigade, currently excluded from the DDA, will also now fall under the Act.
So you're covered for disability discrimination after that date if you're employed by any of these large public services."
Next month: Immigration, asylum, and dispersal issues
If you are concerned about legal issues and want advice, contact:
