Work Issues

Introduction
 Getting back into work
 Positive attitudes amongst employers
 Am I protected under the law?
HIV testing
Disclosure
Information for healthcare workers affected by HIV
Tackling Discrimination
 Further help in Jersey

Introduction

This section provides you with practical information and answers to frequently asked questions about working with HIV in Jersey. ACET has taken all reasonable care to ensure that the information is correct. However, it is not intended as a replacement for professional advice and ACET cannot be held liable for any inaccuracies.

Most people spend the majority of their time in the workplace. People living with HIV are no exception. They can lead perfectly normal working lives; starting new jobs, making contacts, completing projects and achieving their goals. However, like everyone else, people living with HIV face the challenge of achieving a good balance between work and health.

If you have worries about how your health will cope with employment in general, or with a particular job you are thinking of applying for, you should talk to your clinician or to experts on HIV and employment at the Jersey Employment Trust.

Getting back into work

There have been enormous improvements in HIV treatment in recent years, which have resulted in many people with HIV either remaining in the workplace or thinking about returning to work or study.

Work has many advantages for people living with HIV, including stimulation, enjoyment, a sense of accomplishment, company and friendship, not to mention a regular financial income.

You should be aware, however, of some very real difficulties you may face returning to work after having a prolonged period of time off due to illness.  There is also a possibility that you may encounter some difficulties in the workplace related to your HIV infection.

One of the first decisions you will have to make is whether to return to your former type of employment or use the opportunity to enter a new line of work.

For some people with HIV it may not be a question of ’returning’ to work, but of entering the workplace for the first time.

If you need specific skills or qualifications to gain employment in your chosen field you may want to consider further study at Highlands College either as full-time student or by enrolling on one of the many part-time courses offered by the college.

If you lack confidence and you feel worried about the prospect of returning to the workplace, it may be a more realistic plan to undertake some part-time work, either paid or voluntary, while you find a working balance that suits you. However, you should be aware that in Jersey, a person in receipt of short term incapacity benefit is not allowed to do any paid work or voluntary work: but a person on long term incapacity benefit can work without it affecting their benefit payments.

Whatever situation you find yourself in, contact us for advice.

Whatever situation you are in there is a good chance you will need some training to help you prepare, both practically and mentally, for work. In Jersey, ACET works closely with the Jersey Employment Trust (JET) to provide the information, advice and practical support people living with HIV need to prepare to return to work.

People with HIV who access any of JET’s services can be reassured that JET has a strict confidentiality policy. Personal information about HIV status is anonymised and only named members of staff working directly with a person would be made aware of that person’s HIV status, and this would only be done with the expressed consent of the individual concerned.

Positive attitudes amongst employers

Although workplace discrimination may still exist in Jersey, things are improving. Over recent years ACET has been working with Standard Chartered Bank and members of the HIV Business Forum to challenge HIV-related stigma and discrimination in the workplace and encourage employers to update and develop their workplace policies and practices to ensure that people living with HIV in Jersey get a fair deal.

Employers generally want not only to be fair in their recruitment and employment practices but also to be seen to be fair. High profile discrimination cases can damage an organisation’s reputation and be bad for business. Prospective employers could, therefore be asking about long-term health conditions like HIV, not to discriminate but to make sure they are doing their best to prevent discrimination and inequality.

Some organisations already have policies relating to HIV available on their website, or highlighted as part of the recruitment process. They may also have commitments to promoting good practice in such areas as disability, race equality, gay rights, and corporate responsibility.

However, discrimination does exist and decisions you take on whether and how to apply for a job should take this into account. Remember, once you tell someone, you can never take it back. You are not legally obliged to tell your employer, but at the same time your employer will not be able to make ’reasonable adjustments’ for your HIV status if you do not disclose your status.

You should also bear in mind that Jersey currently has no disability discrimination law and it is still possible that an employer in Jersey could use non-disclosure of HIV status as grounds for dismissal. Whatever decisions you make, think about it very carefully first, and don’t be afraid to seek confidential advice from ACET or JACS: that’s what we are here for!

Legal protection

People living with HIV have legal protection in the UK from the point of diagnosis in the form of the Disability Discrimination Act (DDA) 2005. This means that it is unlawful to discriminate against HIV positive people in the context of employment, the provision of goods, services, education and other areas. The law requires employers to make ’reasonable adjustments’ – a change to the workplace or work practices, which removes a substantial disadvantage that a disabled person might experience because of their disability. However this legislation does not apply in Jersey.

Most people living with HIV will need only minimal reasonable adjustments in the workplace, but these might include:

  • time to allow you to see your doctor
  • flexibility in your work schedule to allow you to adjust to side-effects of treatment
  • privacy in order to take medication
  • access to a kitchen to ensure dietary requirements are met
  • desk location near toilet facilities

This is not an exhaustive list, and adjustments would need to be worked out according to your individual needs.

Jersey Law does not specifically deal with discrimination issues at present, although the States of Jersey has made clear its intention to bring forward a Law dealing with discrimination in the near future. A number of employers have already introduced non-discriminatory policies in anticipation of future legislation and because they believe that it is the right thing to do.

The Data Protection (Jersey) Law 2005 regulates how personal information is processed and protects all personal sensitive data disclosed by a job applicant or employee. This includes information about your physical or mental health condition. Explicit consent is needed for personal sensitive information about employees’ health to be processed within an organisation. Every responsible employer should have procedures in place to ensure that personal information about employees is properly handled. The office of the Data Protection Commissioner can advise where people believe their rights may have been infringed. Her contact details are:

The Office of the Data Protection Commissioner:
 www.dataprotection.gov.je
Tel: +44 (0)1534 441064
E-Mail: dataprotection@gov.je

HIV testing

There is no law to stop an employer asking for an HIV test as part of a company medical for new employees. However, they have no right to see the test result without your consent.

Information collected about you during a medical examination should be kept strictly confidential, and only used for its intended purpose within the employer’s existing policies. You should be given a clear understanding about what the information will be used for, who will see it, and how it will be retained.

The only way an employer can ask an existing employee to take an HIV test is if the initial terms and conditions of a job state that this would be the case.

Disclosure

Q. Do I have to tell my employer I’m HIV positive?

A. Unless you are working in certain healthcare professions, there is absolutely no requirement for you to tell your employer that you are HIV positive. HIV is a non-notifiable disease. This is because people living with HIV pose no risk to colleagues or the public in normal workplace situations. Therefore, there is no reason why an employer should need to know.

However you will not be able to ask for ’reasonable adjustments’ if you do not tell your employer that you have a disability.

Best practice for employers suggests that there are only two contexts during the recruitment process, in which you should be asked questions which relate to disability.  Firstly, employers may ask about reasonable adjustments you may specifically need to go through the recruitment process and attend for interview.

Secondly, you may be asked to complete an Equal Opportunities Monitoring Form, which employers use to monitor their own progress in recruiting a diverse workforce. These forms are not generally considered part of your application and are usually detachable. Best practice requires such forms to be dealt with confidentially, and in many cases they will be treated anonymously. You can always check with the employer how the form is going to be used and processed if you have any concerns.

Remember there is no obligation to complete the Equal Opportunities Monitoring Form. How you choose to respond is a personal decision.

Q. What should I say on a job application form?

A. Jersey Employment Law currently provides no protection from discrimination for people during the recruitment process.
Many employers will ask questions about your health, despite the fact that it is considered poor practice to ask about health during the application process unless specific physical fitness requirements are considered a necessary criterion for the job. The wording of these questions may vary but in all cases you should think carefully before you disclose your status.

Remember: it is your choice whether or not to disclose your HIV status. There are advantages and disadvantages whichever choice you make. Unfortunately not all employers are as sympathetic as they should be therefore you should exercise caution, and seek advice.

We would advise you against being directly untruthful on an application form or medical questionnaire if you are asked if you have a disability, but this often depends on the exact wording of the question. You should also be aware that application forms are an implicit part of an employment contract. Therefore, there could be subsequent legal consequences if it becomes a relevant factor in any dispute with your employer that you provided misleading information.

You may choose to leave the question on a form blank. This means that you are not disclosing but neither are you misleading. In this case, avoiding the question would not necessarily be considered a breach of an employment contract in itself and opens the window for disclosure at a later stage if you wish to do so.

Q. Do I have to disclose my HIV status if asked on a medical questionnaire?

A. According to best practice, an employer should only ask people to fill in a medical questionnaire after the acceptance of a job offer. However it is possible for a medical questionnaire to be given to a job applicant before this stage.

Failing to disclose honestly on a medical questionnaire could be considered as grounds for termination of employment. Remember that, unlike the UK, you do not have recourse to disability discrimination law to challenge this kind of discrimination.

However you could state that you would be happy to provide any details after a job offer has been made or you could request to communicate directly with the prospective employer’s occupational health service, where available.

Q. My former employer knows my HIV status. Can they disclose this information in a reference?

A. It is against the law for former employers to disclose your HIV status, without your consent. If you have given a former employer as a referee you might wish to contact them to let them know they may be approached. If you former employer knows about your HIV status, you may wish to use this opportunity to ensure that they do not mention this in your reference. Doing so would break the Data Protection (Jersey) Law 2005.

Q. What if I am asked about my health during an interview?

A. It would be unusual to be asked about health during an interview unless specific physical fitness requirements are needed for the job.

If a question about health is asked, the choice of response is a personal one. Remember there is no legal obligation to disclose your HIV status, but also remember that you do not have the protection of disability discrimination law in Jersey, at the present time.

Some options you may want to consider are:

  • Disclosing your HIV status and focussing on your current good health, your success in managing your condition, and your ability to do the job.
  • Saying that you would be happy to provide further details regarding health status if you are offered the position and/ or that you prefer to discuss it privately with occupational health services.
  • Choosing not to disclose your HIV status. However, this could have subsequent legal consequences if it became a relevant factor in any dispute with your employer that you provided misleading information during the recruitment process.

Q. My prospective employer requires a medical assessment. Must I comply?

A. Any policy requiring a medical examination should not discriminate against disabled candidates. Furthermore, medical assessments should be appropriate and relevant to the role. If medical examinations are ’universal’ (a requirement for all staff), it is not discriminatory practice to expect you to accommodate such a policy.

Information collected about you during a medical examination should be kept strictly confidential, and used only for its intended purpose within the employer’s existing policies. It should be made clear to you what the information will be used for, who is likely to see it, and how it will be retained. Your consent should always be sought before confidential information is shared.

These legal requirements also apply to any third party or external assessors used to conduct medical examinations on behalf of the employer.

In the UK, any discriminatory behaviour arising after a medical assessment (such as withdrawing a job offer on the basis of disability) would contravene the Disability Discrimination Act. This legal protection is not currently available to people living with HIV in Jersey, although good employers should have policies and guidelines, which outlaw disability discrimination and uphold best practice in recruitment.

Q. The post I am applying for will require me to undertake international travel to countries that may have visa restrictions for HIV positive people. Should I disclose my HIV status?

A. Travel requirements may appear as specific criteria on the person specification and may lead to complications if the person appointed is required to travel to countries which have visa restrictions for HIV positive people. In this case we would advise you to start by finding out if the employer has an HIV policy which covers this situation. Many larger companies will have a written policy setting out their response to issues directly affecting HIV positive staff. Your findings will then inform your decision on whether you decide to apply for the position and whether or not you choose to disclose your HIV status.

Q. What should I say about gaps in my CV?

A. If you have had time away from employment as a result of your HIV status, you may feel uncomfortable about answering questions about gaps in your CV. It is however, important to be as honest as possible during your interview. Some potential responses you might consider are:

  • Explain that the gaps in your CV are the result of a disability, but one that does not impact on your eligibility for consideration for appointment to a particular role.
  • State that gaps in employment result from a specific health condition, which is now managed and you would be happy to provide further information to an occupational health specialist, if required.
  • Disclose your HIV status; emphasize your current good health and success in managing your condition, try to address any concerns the interviewer may have, and/or offer to provide additional information if required.
  • Talk about any gaps in your employment in terms of personal development you might have undertaken during these times, without referring to HIV. You might want to talk about any courses you attended, hobbies, involvement in community groups, personal development, etc.

Q. Would it be better for me to tell the prospective employer about my HIV status from the outset?

A. There is no right or wrong answer except the one that is right for you, ultimately the decision is yours. However there are a number of things to think through before making that decision.

  • Many people know very little about HIV and what living with HIV actually means. You may therefore wish to emphasize periods of good health, perhaps explaining that your health is well maintained by HIV treatment, for example.
  • Some people are happy to be entirely open about their HIV status. Others may prefer to disclose on a ’need to know’ basis. Whatever you decide, you have a right to specify who is informed and insist that any onward disclosure takes place only after your explicit written permission has been given. In practice those who ’need to know’ will tend to include the Human Resources manager (where there is one) and your immediate manager or supervisor, who may need to authorise time off for medical appointments or any other reasonable adjustments you may need.
  • Unless you wish it, other colleagues do not need to know about your HIV status and you should not be pressured into allowing wider disclosure. Again the choice is yours.
  • Remember, discrimination at work does still happen, and in Jersey you do not have the protection of disability discrimination law if you become a victim.
  • Although the Data Protection Law gives you legal rights that protect your personal sensitive data, which includes HIV status, there is no absolute guarantee that if you decide to disclose, the information will not be inappropriately shared. Before disclosing you may therefore, like to ask for the prospective employer’s policy on compliance with the Data Protection Act and check that the right safeguards are in place. You could also ask for assurances about how sensitive data is handled and who would have access to it.
  • Finally, if you do decide you are going to disclose your HIV status, you have the right to decide when, how and to whom you do it. You have every right to disclose on your terms, not the employer’s.

Information for healthcare workers affected by HIV

This information is provided as guidance for any healthcare workers worried about HIV. It is not intended to replace professional medical or legal advice.

All doctors, nurses, midwives, dentists, medical students and any other health workers should be familiar with the Department of Health guidelines relating to HIV infected healthcare workers which can be accessed at the Department of Health’s website.

Q. Can I work in the health service if I am HIV positive?

A. Yes. There are many HIV positive healthcare workers who have successful careers in the health service. All medical professionals are required to use Universal Medical Precautions and infection control procedures at all times, no matter what their HIV status. These procedures protect both the worker and the patient from any risk of transmission of many diseases that are far more infectious than HIV.

An HIV diagnosis is not a barrier to working as a medical professional. However there are limitations in some fields of medicine. These limitations apply to healthcare workers involved in Exposure Prone Procedures.

Q. What are defined as Exposure Prone Procedures?

A. The Department of Health defines Exposure Prone Procedures as follows:

"Exposure Prone Procedures are those invasive procedures where there is a risk that injury to the worker may result in the exposure of the patient’s open tissues to the blood of the worker (bleed-back).

These include procedures where the worker’s gloved hands may be in contact with sharp instruments, needle tips or sharp tissues (e.g. spicules of bone or teeth) inside a patient’s open body cavity, wound or confined anatomical space where the hands or fingertips may not be completely visible at all times.

However, other situations, such as pre-hospital trauma care should be avoided by healthcare workers restricted from performing exposure prone procedures, as they could also result in the exposure of the patient’s open tissues to the blood of the worker".

They do not include:

  • Taking blood
  • Giving injections
  • Setting up intravenous lines
  • Routine vaginal and rectal examinations
  • Giving minor stitches
  • The incision of external abscesses
  • Simple endoscopic procedures

The only staff in the health service that routinely perform Exposure Prone Procedures are:

  • Anyone involved in surgery
  • Dentists
  • Midwives

If you are involved in Exposure Prone Procedures and you find out that you are HIV positive, it is essential that you seek confidential advice immediately. Your employer should give you the option to retrain and be redeployed in another discipline.

Q. Do I have to disclose my HIV positive status if I am a healthcare worker?

A. Unless you are performing Exposure Prone Procedures there is no legal obligation to disclose your HIV status. The advice given by the Department of Health is that you should discuss your HIV status with your Occupational Health Department.

If you do not wish to put this in writing on a medical questionnaire, you are entitled to tell Occupational Health verbally. Your confidentiality should be protected at all times, and most of the time there should be no need to involve your line manager.

Q. Where do I stand legally?

A. If you are living with HIV in the UK the Disability Discrimination Act protects you from the point of diagnosis. This means that you are legally protected from discrimination or harassment because of your HIV status.

Similar legal protection is currently not available in Jersey. If you are worried about disclosure or discrimination, contact us for advice.

Tackling Discrimination

Many people living with HIV never experience discrimination at work related to their HIV status, but for those who do, it can be a devastating experience. If it happens to you, either when you are making an application, or at work, there are a number of steps you can take.

  • Raise the matter informally: a simple misunderstanding or oversight can sometimes be easily put right if it is discussed informally with the employer.
  • Make an official complaint: Find out about the employer’s complaint procedures. Check the time limits on making a complaint and provide all the required information.  This will probably include: the date, details of the incident, the people involved, what discrimination occurred and what evidence you have.
  • Go to mediation: Trade Unions and JACS can often help to mediate between employees and employers where a dispute arises. The internal complaints or grievance procedures must be followed before you can go further with a complaint. This is a more straightforward option where an employment contract is already in place but it can be done between applicants and prospective employers.
  • Bring an employment tribunal case: This should be your last resort whendisability discrimination legislation is in place.  The procedure is rigorous, precise and often protracted. Disability discrimination cases can become complex and your chances of success may be improved if you have legal advice and representation.

Whatever you decide to do you should apply the following principles:

  • Keep detailed written records of events – you may need to provide these as evidence or refer to them in the future
  • Seek advice and representation where you need it – a range of organisations can provide this in Jersey. See the further information section for contact details.
  • Get support – being involved in a dispute can be emotionally distressing but there are organisations that can help. See the further information section for contact details.

Further help in Jersey

This section provides contact details for a range of agencies providing information and services relating to work issues.

ACET Jersey

This is the local HIV agency providing practical help, information and advice about all issues relating to working with HIV in Jersey.

Contact details:    6 Plaisance Terrace, La Route du Fort, St Saviour, Jersey JE2 7PA 
                           Telephone  (01534) 505957 to book an appointment to discuss your needs with ACET
                           Website www.acet.je

Jersey Advisory and Conciliation Service (JACS)

JACS provides a free advice and conciliation service for employers and employees, whether long-term residents or newer arrivals. Office opening hours, 8.30a.m. to 4.30p.m. Monday to Friday

Contact details:    Trinity House, West’s Centre, Bath St, St. Helier, JE2 4ST
                           Telephone (01534) 730503
                           Website www.jacs.org.je

Jersey Citizen’s Advice Bureau (CAB)

The Citizens Advice Service provides free, independent, confidential and impartial advice to everyone on their rights and responsibilities. It values diversity, promotes equality and challenges discrimination.
The Bureau is open Monday to Friday from 10.00am to 3.00pm. A Portuguese-speaking adviser is available.
A diagnostic Legal Clinic is held once each week with a volunteer lawyer in attendance. Clients will need to have consulted a CAB adviser before being given an appointment.
Electronic mail enquiry service - The Jersey Citizens Advice Bureau is happy to take enquiries relating to local issues via e-mail, if the problem is complex you will be asked to telephone or visit the Bureau.

Contact details:  St Paul’s Centre, Dumaresq Street, St Helier, Jersey, JE2 3WP
                         Telephone  0800 735 0249
                         Website www.cab.org.je

Careers Jersey

Careers advice and information for people of all ages, including those wishing to change career or return to education. Opening hours are 8.30a.m to 4.30p.m. Monday to Friday.

Contact details:    Social Security Building, La Motte Street, St Helier, JE4 8PE
                           Telephone (01534) 449440
                           Website http://www.gov.je/Education/Careers/Pages/index.aspx


Jersey Employment Trust

The Jersey Employment Trust or JET as it is sometimes known, provides an individual and flexible service to people with a variety of needs, including HIV.
JET can offer a range of training courses that are designed specifically to meet individual needs. Courses are varied and range from helping improve basic skills, such as literacy and numeracy - to gaining confidence, employability and job skills They can also offer specific vocational training, that complement their small business units.
JET can provide one to one support to help individuals find paid employment. This may include contacting and negotiating with employers on their behalf; on the job training and long term support and follow ups to check how things are going.
People with HIV who access any of JET’s services can be reassured that JET has a strict confidentiality policy. Personal information about HIV status is anonymised and only named members of staff working directly with a person would be made aware of that person’s HIV status, and this would only be done with the expressed consent of the individual concerned.

Contact details:    Jersey Employment Trust, Oakfield - Highlands Campus,
                           La Rue du Froid Vent, St Saviour, JE2 7LJ
                           Telephone 788900
                           Website www.jet.co.je

Workwise

Workwise is part of the Work Zone at Employment and Social Security. The aim of Workwise is to help people who have a special employment need into suitable employment.

If necessary, job coaches will work with you and may even start your new job with you, providing support as you learn your new role.

With your job coach, you will agree an action plan that helps you to recognise your current strengths and employment potential, as well as greater direction in your job seeking.

You will be advised on the most suitable employment options and helped with the application process.

If appropriate, a variety of training courses are available to assist you into employment. These include basic food hygiene, confidence building, computer courses and care training. There is also a resource area in the Work Zone with access to a library and computers, offering the opportunity to improve or update your skills.

The level of support will be agreed between the coach and the customer. Your job coach or job coach assistant will remain a point of contact for you and your employer.

Contact details:   Philip Le Feuvre House, La Motte Street, St Helier, JE4 8PE
                          Telephone (01534) 280000
                          Website http://www.gov.je/Working/JobCareerAdvice/Pages/Workwise.aspx

Highlands College

Further, higher and adult education college offering both full-time and part time courses.

Contact details:   Highlands College, PO Box 1000, St Saviour, Jersey. JE4 9QA
                          Telephone (01534) 608608
                          Website www.highlands.ac.uk

Current employment opportunities

www.jobsinjersey.gov.je

www.thisisjersey.com

www.jerseyrecruitment.com

Last updated June 2011

Work Issues