HIV, Employment and the Law: a Socio-Legal Analysis of the Legal Framework

285 Pages Posted: 16 Nov 2021

Date Written: May 1, 2019

Abstract

Whilst there has been significant research into HIV and AIDS, little research has been conducted into the issue of PLHA within an employment relationship. It is however apparent that research into the area of PLHA within an employment relationship is urgently required. As treatments and therapies for the virus develop and improve, life expectancy is enhanced and HIV has started to be perceived by some as a long term chronic condition rather than an acute life threatening illness. Yet PLHA are still subject to significant amounts of stigma and discrimination due to common misconceptions about the nature of the virus. To combat this, the United Kingdom seeks to protect PLHA from discrimination by deeming them to be ‘disabled’ for the purposes of the Equality Act 2010 (EA 2010).

With these issues in mind, this thesis seeks to identify whether the current framework employed by the EA 2010, and the Act’s designation of HIV as a disability, represents an adequate response to the common societal issues faced by PLHA and is consistent with international and European legal obligations. To do this, two distinct methodologies are employed. Firstly, a doctrinal, literature based approach and secondly, empirical research consisting of 20 semi-structured face-to-face interviews with PLHA. The findings of the empirical research were used to critique the law from an external, non-doctrinal perspective and develop proposals for amendments to UK law which accorded with the wishes of PLHA whilst ensuring compliance with the UK’s international and European legal obligations.

The thesis finds that when considered from a purely normative perspective, the designation of HIV as a disability by the EA 2010 appears to go beyond the UK’s obligations in respect of its international and European legal obligations. Despite this, the empirical research indicates that the manner in which PLHA receive protection from discrimination under the EA 2010 requires reworking in order to reflect more accurately the issues faced by PLHA. Consequently, the thesis argues that the automatic disability designation afforded to PLHA by paragraph 6 to Schedule 1 of the Equality Act 2010 ought to be removed and that PLHA can be adequately protected from discrimination by an amended definition of disability in the EA 2010 which accurately incorporates the social model of disability into domestic law.

Keywords: HIV, Discrimination, Law, Equality Act 2010, Disability

Suggested Citation

McTigue, Peter, HIV, Employment and the Law: a Socio-Legal Analysis of the Legal Framework (May 1, 2019). Available at SSRN: https://ssrn.com/abstract=3929438 or http://dx.doi.org/10.2139/ssrn.3929438

Peter McTigue (Contact Author)

Nottingham Trent University ( email )

Burton Street
Nottingham NG1 4BU, NG1 4LN
United Kingdom

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