Working Life and New Rights

posted: 05/05/2010

The Equalities Act squeezed through Parliament just before the election. In October it will be law that you can use. What difference might it make to the world of work for people with HIV?
 

What’s new? 
In work situations the main new disability rights are:

• A ban on most health related questions until after a job offer is made - so asking if you have HIV or details of any health problems and absences will be barred - until they have offered the job. There are some exemptions- for example they will be able to ask if you require any adjustments to be able to carry out a task during your job selection / interview, or to ask if you are a ‘disabled person’ on a simple equality monitoring form.
• Introduction of ‘protected characteristics’ – ‘disability ‘ is one of these . Protected characteristics are the groups and situations where people have legal protection from discrimination. Protected from discrimination are people with disabilities (this includes everyone with HIV), sexuality, gender, race, age, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, and religion or belief.
• Discrimination by Association. This protects people from discrimination when they are associated with a person with protected characteristics – eg the HIV negative / untested partner of someone with HIV will also be protected. So refusing a job to a HIV negative (or untested) gay man for fear that he might have HIV and need time off work, would be illegal disability discrimination.
• Discrimination by Perception. Someone may mistakenly believe you are a disabled person and discriminate against you because of this. This is now illegal too.
• Combined Discrimination. People can now claim direct discrimination for up to 2 protected characteristics – so you could claim discrimination both about HIV and race, or HIV and gender, or HIV and sexuality – or any other combination. 
• Detriment Arising from Disability. This gives back the legal right not to face ‘less favourable treatment’ – court decisions made this difficult to win. For example sacking someone for taking reasonable time off for a HIV clinic appointment is wrong – it is an impairment-related absence. The employer would have to prove the dismissal was a proportionate means of achieving a legitimate aim.
• Duty to make reasonable adjustments – this is now a little better - employers now have to provide auxiliary aids or services to remove any disadvantage the person experiences.
• There’s a broader definition of disability to include more people, but everyone with HIV is already protected as ‘ disabled.’ This therefore helps some people who don’t have HIV. People now only have to show that any impairment they may have has a “substantial and long term effect on a person’s ability to carry out normal day-to-day activities”.

More Information

For more background, and for an easy read summary of the Act, visit the Equalities Office website

Eversheds (they are lawyers) Guide to the Act for Employers
Equality and Human Rights Commission:
HR Magazine article

Source - Breakthrough UK

Equality Act – what’s new?

posted: 16/04/2010

The Equality Act assembles in one place all the various anti-discrimination laws introduced over the last 40 years. Its big ambition is to simplify and standardise the law to make it easier for people to understand. It’s not just tidying-up a mess of different laws because the Equality Act adds many new rights and remedies.
 

Disability
It is now be unlawful to ask invasive questions about disability and health before any job is offered. This is particularly important for those with mental health or other conditions involving social stigma, such as HIV. After the job-offer stage, an employer can ask these questions, in order to consider whether any specific adaptations will be necessary. However, if an individual finds that his or her job offer is withdrawn after disclosing HIV/disability, he or she will be able to claim compensation for disability discrimination. It is assumed the employer discriminated unless s/he proves that withdrawing the job offer was not discrimination.
 

Sexual orientation and religion
The new Equality law also covers providing goods and services to consumers. So a B&B refusing a gay couple, a Catholic adoption agency refusing to help a gay couple will all be unlawful discrimination.
 

October start

These and other changes will be the law from early October.
 

Source

HIV - New Rights

posted: 08/04/2010

The new Equality Act gives some useful new rights for people living with or affected by HIV. The Act just squeezed through Parliament in time before the election.
 

Pre-Employment Health Questionnaires - banned
The Equality Act, which will come into effect in October, bans employers from using health questionnaires before you are offered a job. Until now, employers could ask job applicants whether they have a disability, are taking medication, or have a medical condition – even if it these make no difference to whether you can do the job. The legal ban on pre-employment medical questionnaires will make it easier for people living with HIV to get back into work or to change jobs.
 

Associative discrimination - banned
The Act also protects from discrimination people who are thought to be, or are associated with, someone who is living with HIV. So partners, family, or friends of someone with HIV can also make claims for disability discrimination if they face HIV-related discrimination because of their contact with someone with HIV. And groups most affected by HIV, such as gay and bisexual men, will also be able to complain if they experience discrimination because they are thought to have HIV.
 

Multiple Discriminations - banned
Dual discrimination will also be recognised for the first time; many people experience discrimination based on their HIV status and sexual orientation and/or ethnicity. People will now be able make claims for each of these reasons rather than be limited to just making a complaint based on one type of discrimination.
 

Deborah Jack, Chief Executive of NAT, commented “We are delighted that the Equality Bill has made it onto the statute books. NAT has actively campaigned for the Bill to include real benefits for people living with HIV. We have succeeded in making sure people living with HIV will no longer have to fear being asked to disclose their status when applying for a job.
We are also pleased that the Act outlaws discrimination based on perception or association and dual discrimination. These new protections secured in the Equality Act are an important step towards a society free from HIV-related prejudice and discrimination.”

For a full summary of the Equality Act and the employment and other reforms that will be law from October see: http://www.equalities.gov.uk/equality_bill.aspx

EU Warns UK on Equality

posted: 14/12/2009

The government faces legal action by the European Commission for not doing enough to protect people from discrimination at work. This threatens the Equalities Bill now going through Parliament.
 

The European commission says parts of UK law, including provisions on sexual orientation and disability, are inadequate. They fail to properly implement several Equalities Directions signed unanimously by European countries way back in 2002. The EU could take the UK government to the European court of justice.
 

Sexuality : fail
The EU sent the government two official opinions last month, and these include a warning that the law that applies to faith-based organisations, schools and adoption agencies allows far too much discrimination on grounds of sexual orientation.
"This could be difficult for the government," said Robin Allen QC, head of Cloisters chambers. "The extent to which religious organisations are exempt from the rules of sexual orientation discrimination is a particularly difficult issue. The government will certainly resist any strengthening to the current law in an election year."
 

HIV Class Actions missed : fail
Other parts of UK law singled out by the EU's equal opportunities commissioner include the lack of a ban on "instructions to discriminate", where a person is discriminated against because of the actions of a third party, and the lack of clear provisions for class actions. Class actions are an important right, particularly for stigmatised groups like people with HIV, who are often very reluctant to make formal complaints. Organisations, like George House Trust, should be able to take class actions on behalf of a group of people to challenge illegal discrimination.
 

"The government has kept promising to address group claims and, as a matter of good practice, lawyers have been saying it should happen. But no one had picked up that failing to do so would breach the EC directive – this came as a total surprise," said Rachel Harfield, an employment law solicitor at Russell Jones & Walker.

UK only EU state to fail on equalities
Last month, the long-awaited equality bill was included in the Queen's speech for a second year and was presumed to be compliant with EU requirements. News of the warning from the commission means the UK is the only European country to have failed to implement two key EU directives on discrimination.
 

"This directive was agreed unanimously by all EU countries in 2002 but, to be effective, it needs to be fully and correctly transposed into national law," said Vladimir Spidla, EU commissioner for equal opportunities. "We call on the UK government to make the necessary changes to its gender equality legislation as soon as possible so as to fully comply with the EU rules."
 

Two months to answer
The government has two months to respond. The general election has to be held within the next six months and Parliament has to finish all business about a month before the election. A spokesman for the government's Equalities Office said: "We take our European legal obligations seriously. We will be studying the reasoned opinions carefully and will reply to the commission in the new year. The equality bill will be continuing its progress through parliament during the fifth session."
 

The criticism will embarrass the government. The bill, which replaces nine existing laws and more than 100 other measures, was intended to end this patchwork mess with a single law.
 

"One of the criticisms of the existing equality legislation is that there are too many pieces of legislation," said Harfield. "The equality bill is supposed to be a consolidation – the last thing the government would want is to introduce an equality bill as it stands, and then have to introduce new legislation further down the line. That would make a mockery of what the bill is supposed to do."
 

Multiple discriminations : Fail

Experts have welcomed many of the bill's provisions, but some see it as a "missed opportunity" for failing to develop the law on equal pay or to allow claims with more than two grounds. This is another issue that affects people with HIV. Many people with HIV tick several equality boxes and discrimination may be because of HIV (disability), sexuality, ethnicity, and gender. Often discrimination may be for more than one of these reasons, but to make a claim at present you can only pick one. That choice is a gamble and Europe says there is no need for this.
 

Allen said: "One of the biggest issues with the equality bill is the attempt to redraw the lines between gay people and evangelicals – there will be concerns that any further demands for changes could interfere with the legislative process."
 

Source

HIV Rights Threatened

posted: 27/07/2009

Crisis at the top of the Equalities and Human Rights Commission has followed the controversial reappointment of Trevor Phillips as its chair for another three years. The commission took over from the Disability Rights Commission (and the other commissions for race and gender) and so is now the body responsible for promoting the rights of people living with HIV. The crisis at the top threatens the work of the commission on behalf of everyone living with HIV.

• Six of the 16 commissioners (the board of directors) have quit so far and another is expected to go. Three of these were the disability commissioners.
• The chief executive and director of communications have both resigned.
• The National Audit Office earlier this month refused to approve the commission's accounts, as over £1m was misspent on making 7 senior staff redundant from the former Commission for Racial Equality he led, who were then immediately reappointed as expensive consultants.
• Phillips owns a majority stake in an equalities consultancy, and this risks conflicts of interest because he's in charge of UK equalities advice and regulation.
• A £300,000 contract for media work was awarded without following EU procedures to a company run by a close friend.

He's paid £110,000 a year for three and a half days a week of work. He's known by some as 'Teflon' Phillips, and denies he's done anything wrong. He's hidden himself away on holiday and refuses to answer his critics, while his commissioners and key staff abandon ship.

photo credit

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