When does grief become a disability?

Grief in the workplace will always be a tricky subject for any employer. When one of your work force suffers a bereavement, or some traumatic news, knowing quite how to handle it will never be an exact science.

The fact is we all react differently to tragedy. Some people bury themselves in their work, others simply cannot go near the office. Some people find talking about their troubles a good way of coping, others bottle their emotions up, hoping that by ignoring it the pain might go away.

There is no right or wrong, but in the work place there needs to be a common standard, or procedure, that is followed in the interests of equality.

This is particularly true in the current climate, for behind every death in the growing number of Covid-19 casualties there lies family or friends who must come to terms with the loss of a loved one. And many of those people will sooner or later need to return to work and try to continue their daily routine as best they can.

This return to the ‘daily grind’ was put in the spotlight recently in the case of a TSB employee who felt he had been treated unfairly in being denied a financial bonus because of his drop in performance following his father’s death. In the case of Igweike v TSB Bank (2020) the employee lost his father in June 2016 and subsequently experienced anger, grief, fatigue, confusion and anxiety.

All of this caused him to lose concentration at work, while he also began turning to alcohol as a way of dealing with his pain. Mr Igweike was given compassionate leave until August 2016 by his employer and, while there were initially concerns over his performance when he returned to work, after six months everything seemed to be back on track.

However, by this stage he had been told he would not be receiving a bonus because of his drop in performance – leading the employee to raise a grievance. This grievance was rejected and soon after he was being prescribed anti-depressants by his GP.

Mr Igweike claimed the drop in performance which caused him to miss out on the bonus was due to him being ‘off track’ while he tried to come to terms with his grief. But the Tribunal found that he was not disabled at the time of the bonus being withheld and that it was only later that he became disabled through the depression. Yet while that decision was upheld on appeal, it was decided that the tribunal had applied the wrong tests in reaching its verdict.  It had focused on whether or not Mr Igweike was depressed at the time in question, instead of looking more closely at whether his day-to-day activities were affected and asking if he had suffered an adverse grief reaction.

Remember, in Section 6 of the Equality Act 2010, a person has a disability if:

  • He/she has a physical or mental impairment;
  • That impairment has substantial effect;
  • The impairment has a long-term adverse effect; has lasted for 12 months; is likely to last for 12 months or more; or is likely to last for the rest of the person’s life, and
  • The impairment affects the person’s ability to carry out normal day-to-day activities.

The feeling was that too many tribunals start with impairment, instead of looking at the question the impact on day-to-day life first and then whether this is severe enough to be an impairment.

It can be a fine line and at the appeal HH Judge Auerbach said: “In some cases a bereavement leads to ordinary symptoms of grief which do not speak to any impairment. In others they may lead to something more profound which is, or develops into, an impairment over time.”

The Employment Appeal Tribunal also sent out a stark reminder to employers that a person’s performance at work should be included when analysing their normal day-to-day duties. It is wrong to simply consider their out-of-work activities.

The starting point is to look at the effect the grief has taken on the individual to make a judgment on whether it is more than just minor or trivial. And while a person’s performance at work should absolutely be considered, simply comparing them to their colleagues to make that judgment can bring its own problems. For example, a high achiever could suffer a dip in form but still exceed the performance of some lesser-gifted colleagues.

There will always be natural fluctuations among any group of workers, but courts like to ask whether any fluctuation is outside of that which could be naturally expected given the individual’s track record.

Fortunately for the employer in the Igweike v TSB Bank case, there was nothing to show that Mr Igweike’s performance had dropped significantly after his bereavement. The Employment Appeal Tribunal also agreed the original judge was correct in ruling that Mr Igweike was not disabled through his grief.

Yet even if a bereaved individual is not disabled for the purposes of the Equality Act, employers must still carefully consider how they will support those employees.

While the growing number of Covid deaths take the headlines, the mental trauma on those left behind affects many, many more – and there will be plenty for whom the strain becomes too much and tips them into disability.

Employers up and down the country will need to be sympathetic and will need to tread very carefully when trying to both help and assess these individuals. Those who fail to do so should be prepared to face a claim of discrimination.

For more information or to speak to a member of our employment team contact employmentlaw@woodfines.co.uk

-Maria Gallucci 

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