Recruitment and selection
Living and working with HIV
Encouraging good job applicants
Asking about disability
Reasonable adjustment questions
Equal opportunities questions
References
Questions during the interview
Questions when you offer a job
Disability-related absence
Gaps in employment history
Medical questionnaires
Medical examinations
Respecting confidentiality
Further information
As a responsible employer you will want to recruit an effective and high-quality workforce. This will mean recruiting on the basis of ability and ensuring you do not discriminate against the best candidates for unacceptable reasons. You will also want to retain good employees and ensure that they do not leave as a result of prejudice or discrimination experienced in the workplace.
This section of our website contains information on how to avoid discrimination and provide a fair, safe and supportive process through which you can select the best candidate for the job.
The information provided is not a substitute for professional legal advice, but it does provide a guide to agreed best practice which will help you in recruiting a high-quality and diverse workforce suitable for your needs.
Living and working with HIV
In recent years we have seen an enormous improvement in effective HIV treatments (known as ant-retroviral therapy or ART). People living with HIV today can expect to remain well, have a normal life-span and lead active, working lives. It is a misconception to assume that someone living with HIV will require more time off work than any other member of staff.
It is also important to know that in almost all working environments there is no risk of HIV transmission through normal work contact for either colleagues or the public.
Sometimes there will be a need for the employer to make workplace adjustments.
Encouraging good job applicants
Because stigma and discrimination towards people living with HIV have been so widespread since the beginning of the epidemic, many people living with HIV are apprehensive when applying for a job. They may not wish to disclose their status when applying for a job because:
- they may not consider themselves disabled.
- they may feel that a question about their HIV status is intrusive and possibly discriminatory.
- they may feel that by disclosing their status they become vulnerable to discrimination from the employer.
- they may be concerned that disclosure may not be kept confidential, or could provoke discrimination amongst colleagues.
Good recruitment practice takes account of such concerns and sensitivities. It affects not only the questions you ask job applicants but also how you handle and respond to any information the applicant provides about disability or HIV status.
Other ways of signposting your good practice to potential applicants include:
- including positive statements about disability and HIV in your equal opportunities and employment policies.
- having clearly signposted commitments to disability equality and equality for people living with HIV on your website and in job advertisements.
- training staff around HIV and equality issues.
- having a specific HIV policy clearly available on your organisation’s website, or mentioned alongside other equality initiatives and practices.
Asking about disability
If you intend asking questions about disability and long term health conditions there should be good reasons why you are requesting this information and these reasons should be clearly explained to the candidate through all stages of the recruitment process. Inappropriate questions could be deemed to be discriminatory.
The two main reasons why you might want to ask about disability are:
- to provide any necessary reasonable adjustments for the recruitment and interview process, or for the successful candidate in commencing employment.
- to monitor how well you are performing as an employer in equality and diversity.
Reasonable adjustment questions
It is good practice to ask at an early stage of the recruitment process whether an applicant needs any reasonable adjustment to attend the interview or for any other aspect of the selection and or recruitment process.
It is best practice to ask any question about reasonable adjustments in the workplace an applicant might need only once the successful applicant has accepted the job offer. If a question is asked before a job offer, a candidate might fear that an honest response might result in discrimination.
Equal opportunities questions
Any questions used to monitor performance against standards of equality and non-discrimination should be sent on a detachable form to all job applicants along with the job application form, with a clear statement that it is optional whether or not to respond, and with a commitment to confidentiality. You should also ensure that the applicant knows that any information provided will not be used as part of the selection process.
References
When requesting references for candidates you should ensure that you do not ask any questions which could result in a former employer disclosing somebody’s HIV status without that individual’s consent.
Referees should not mention someone’s HIV status in the reference. It is important to understand that in many cases the inclusion of such information could contravene the provisions of the Data Protection (Jersey) Law 2005. If you receive such unsolicited information, you should ensure that your subsequent actions are not discriminatory.
Candidates, even those who are unsuccessful, have a right to access any information held about them by an organisation, including any references received in connection with a potential role.
Questions during the interview
It is considered poor practice to ask about health during an interview unless specific physical fitness requirements are a necessary criterion to do the job. If you do decide to ask, remember that candidates have no legal obligation to disclose their HIV status.
If a job applicant raises their HIV status at interview it is important to be sensitive, assuring the candidate that you are an equal opportunities employer, that you never discriminate on the grounds of disability or HIV status, and that you are always prepared to make reasonable adjustments in the workplace and in working practice.
Any discussion of disability should be aimed at helping disabled candidates through the recruitment process and helping them decide what adjustments they may need if they are the successful candidate for the job.
Questions when you offer a job
It is appropriate to ask questions about any need for reasonable adjustments once you have taken the decision to appoint someone. Once the applicant has accepted the job you should assure them of the confidentiality of all personal information and offer the opportunity for further discussion about any adjustments they may need with human resources and / or occupational health if available or on a confidential basis with an appropriate member of staff.
Disability-related absence
It is good practice when considering a job applicant’s past sickness absence record (and also when recording employee absence) to make a distinction between disability-related absence and sickness absence. It is good practice to make clear in requesting information about sickness absence from both referees and job applicants that you are not asking for information on absence related to disability.
If disability-related absence is brought to your attention, it should be considered separately from sickness absence. You should not assume that past disability-related absence is bound to recur. The absence could, for example, have been caused by a failure of a past employer to provide reasonable adjustments, or the applicant’s condition might now have stabilised or be better managed.
You need to ensure that you are not making discriminatory judgements on the basis of someone’s past absence record. You should also always offer job applicants the opportunity to discuss any relevant health-related issues with occupational health or another appropriate member of staff on a confidential basis.
Gaps in employment history
For someone living with HIV, responding to questions about gaps in a CV might itself be difficult. Questions need to be handled sensitively, as some people may not want to disclose their HIV positive status in an interview.
Someone living with HIV may have had time away from paid employment for reasons relating to their HIV status, for example coming to terms with diagnosis or adjusting to starting treatment. If you decide to ask about these periods away from the labour market, you may want to make it clear that if the absences are due to disability, the job applicant will not be discriminated against.
You may also consider asking what kinds of activities were pursued by the applicant during gaps in employment, rather than asking for the ’reason’ they occurred.
Medical questionnaires
Employers should consider whether medical questionnaires are entirely necessary for a particular role. If they are, it would be best practice to ask such questions after the job offer has been accepted, to remove any fears that disclosure may negatively affect a potential employee’s application.
Some people living with HIV prefer to be able to explain in more detail how they are successfully managing their condition and be on hand to answer any questions, rather than rely on a form.
In asking medical questions you should always make clear that applicants are welcome to discuss any health-related matters in person and in confidence with an appropriate member of staff, either in addition to or as an alternative to filling in a questionnaire.
Medical examinations
Some employers have policies that require staff to undertake a medical examination as part of the recruitment process. As with medical questionnaires you may wish to consider if such examinations are relevant as part of the recruitment process, as they can prompt fears or suspicion of potentially discriminatory behaviour.
As with medical questionnaires it is best practice to ask for any medical examination to take place after the job has been accepted.
Any medical assessment has to be appropriate and relevant to the role. If medical examinations are ’universal’ [a requirement for all staff], it is not discriminatory practice to expect applicants to accommodate such a policy.
Information collected about an individual during a medical examination should be kept strictly confidential, and used only for its intended purpose within existing policies.
The applicant should be informed what the information will be used for, who is likely to see it [seeking consent if appropriate], and how it will be retained.
Respecting confidentiality
Every responsible employer should have procedures in place to ensure that personal information about employees is properly handled. The Information Commissioner’s Office has produced a code of practice for employers and can also advise where people believe their rights may have been infringed.
As an employer you are liable for keeping the information obtained confidential. The Data Protection (Jersey) Law 2005 regulates how personal information is used and protects all sensitive data disclosed by a job applicant or employee.
Depending on individual circumstances, you might need to disclose this information to third parties. In this case, only personnel that ’need to know’ should be informed of the situation. In practice this will tend to include the Human resources Manager (where there is one) or the person in charge of implementing any reasonable adjustments. Explicit consent should be sought from employees when sensitive information, particularly relating to health information, is processed by an organisation.
Further information
National AIDS Trust publishes a useful booklet for employers entitled: HIV and Recruitment
Local information is also available from:
JACS, and
The Office of the Data Protection Commissioner:
www.dataprotection.gov.je
Tel: +44 (0)1534 441064
E-Mail: dataprotection@gov.je
Last updated April 2010