The Law and Human Rights

Legal protection for people living with HIV in Jersey
HIV testing
HIV and Human Rights
UNAIDS Reference Group on HIV and Human Rights

Legal protection for people living with HIV in Jersey

People living with HIV have legal protection in the UK from the point of diagnosis under 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.

An employer in the UK will be said to discriminate against an employee if "for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others" and "he cannot show that the treatment in question is justified".

In most cases, it is unlikely that an employer would be able to show that less favourable treatment could be justified on the basis of HIV infection alone.

In respect of provision of services (including the provision of goods or facilities), it is unlawful for a service provider not to provide services to a disabled person that he provides to members of the public, or to discriminate in the standard of service or the terms on which the service is provided.

It is important to be aware that this level of legal protection is currently not available to people living with HIV in Jersey.

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 coming years.

Nevertheless, a number of employers in Jersey have already introduced good practice HIV non-discriminatory policies in line with their own ethical codes and humanitarian principles and in anticipation of future legislation, because they believe that it is the right thing to do.

ACET Jersey is committed to promoting good practice among employers in challenging stigma and discrimination and in the protection of people living with HIV in Jersey.

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, an employer has no right to see the test result without the employee’s consent.

Information collected about employees during a medical examination should be kept strictly confidential, and only used for its intended purpose within the employer’s existing policies. Employee’s 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.

HIV and Human Rights

UNAIDS works to help enable States to meet their human rights obligations, and to empower individuals and communities to claim their rights in the context of the HIV epidemic.

Human Rights and Universal Access: What have Governments committed themselves to?

To ensure the full enjoyment of all human rights and fundamental freedoms by people living with HIV and members of vulnerable groups; promoting access to HIV education and information; full protection of confidentiality and informed consent; intensifying efforts to ensure a wide range of prevention programmes, including information, education and communication, aimed at reducing risk-taking behaviours and encouraging responsible sexual behaviour, including abstinence and fidelity; expanded access to essential commodities, including male and female condoms and sterile injecting equipment; harm-reduction efforts related to drug use; expanded access to voluntary and confidential counselling and testing; safe blood supplies; and early and effective treatment of sexually transmitted infections; developing strategies to combat stigma and social exclusion connected with the epidemic.

A Political Declaration on HIV was issued in 2006 which states that:

"To empower rights-holders to claim their rights, to protect human dignity and to prevent the transmission of HIV, the following rights should be protected so that people will come forward for HIV information, education and means of protection, and will be supported to avoid risky behaviour:

  • Non-discrimination: protected against discrimination if seek help or are HIV+
  • Right to privacy: protected against mandatory testing; HIV status kept confidential.
  • Right to liberty and freedom of movement: protected against imprisonment, segregation, or isolation in a special hospital ward.
  • Right to education/information: access to all HIV prevention education and information and sexual and reproductive health information and education.
  • Right to health: access to all health care prevention services, including for sexually transmitted infections, tuberculosis, voluntary counselling and testing, and to male and female condoms.

Vulnerable populations

Depending on the legal and social situation and the nature of the epidemic in the country, some groups may be more vulnerable to infection and impact because of their legal status or lack of human rights protection, e.g. women, children, minorities, indigenous people, poor people, migrant-workers, refugees, sex workers, people who use drugs, men having sex with men, and prisoners.

These groups should have equal access to HIV prevention information, education, and commodities, and to HIV care, support and anti-retroviral treatment; should not be subject to sexual violence or coercion, where applicable; and should be able to participate in the formulation and implementation of HIV and AIDS policies that affect them.

  • Non-discrimination/equality before the law: same access as others to services
  • Rights to education and health: same access to HIV prevention education and information, and health care services, including STI services and condoms
  • Liberty, security of person and freedom from cruel, inhuman and degrading treatment: freedom from violence, including sexual violence, freedom from mandatory testing
  • Right to participate in public life: participation in the formulation and implementation of HIV policy

 For those living with HIV or otherwise affected by it, the following rights should be protected:  

  • Non-discrimination and equality before the law: right not to be mistreated on the basis of health status, i.e. HIV status
  • Right to health: right not to be denied health care/treatment on the basis of HIV status
  • Right to liberty and security of person: right not to be arrested and imprisoned on the basis of HIV status
  • Right to marry and found a family, regardless of HIV status
  • Right to education: right not to be thrown out of school on the basis of HIV status
  • Right to work: right not to be fired on the basis of HIV status
  • Right to social security, assistance and welfare: right not to be denied these benefits on the basis of HIV status
  • Right to freedom of movement, regardless of HIV status.
  • Right to seek and enjoy asylum, regardless of HIV status".


UNAIDS Reference Group on HIV and Human Rights

The UNAIDS Reference Group on HIV and Human Rights is an independent, advisory body, established in 2002 to advise the Joint United Nations Programme on HIV/AIDS (UNAIDS) on all matters relating to HIV and human rights. The views of the Reference Group, including those expressed in their issue papers and statements, do not necessarily reflect the views or positions of the UNAIDS Secretariat or the Co-sponsors of UNAIDS.

The Reference Group advises UNAIDS on how it can strengthen the capacity of governments, civil society and the private sector to protect and promote human rights in relation to HIV, and how to operationalise human rights, gender and the principles of GIPA (Greater Involvement of People Living with HIV) in UNAIDS policies and technical support.

The Reference Group is made up of people from many different perspectives with a common commitment to, and expertise in, the area of HIV and human rights. The group includes advocates, HIV programmers, lawyers, a High Court judge, people living with HIV, people working with sex workers and drug users, an ethicist, academics and the UN Special Rapporteur on the Right to Health.  Its members act in their individual capacity.


Read more on the UNAIDS Reference Group on HIV and Human Rights here (http://www.unaids.org/en/PolicyAndPractice/HumanRights/20070601_reference_group_HIV_human_rights.asp

 

Last updated April 2010

The Law and Human Rights