Can grief be considered as a disability?

For every employer, dealing with grievances in the workplace will always be a challenge. Knowing exactly how to respond when a member of your workforce experiences the death of a loved one or receives distressing news will never be an easy subject.

We all react to tragedy in different ways, it is a fact. Some people spend all of their time working, while others are physically unable to enter an office. Others hide their feelings in the hopes that the pain will go away by ignoring them. Other people find that talking about their problems helps them cope.

There is no such thing as right or wrong, but there should be a common standard or practise followed in the workplace to promote equality.

This is especially true given the current situation when there are often grieving family members or friends for each death among the growing number of Covid-19 deaths. And many of them will eventually need to go back to work and carry on as best they can with their everyday lives.

This return to the “daily grind” recently came to light in the instance of a TSB employee who believed he had been treated unfairly after being refused a financial bonus due to his poor performance after the loss of his father. In the case of Igweike v. TSB Bank (2020), the employee lost his father in June 2016 and thereafter felt irrational emotions like rage and grief as well as exhaustion, bewilderment, and anxiety.

As a result of everything, he struggled to focus at work and started abusing alcohol to numb the pain. When Mr. Igweike returned to work after taking compassionate leave up until August 2016, there were some initial concerns about his performance, but after six months, everything seemed to be back to normal.

But, at this point, he had been informed that, as a result of his poor performance, he would not be getting a bonus, which caused the employee to file a grievance. As his complaint was turned down, his doctor promptly recommended antidepressants for him.

Mr. Igweike claimed that his performance decline, which led to him losing the bonus, was the result of him being “off track” while he grieved his loss. But, the Tribunal determined that he was not disabled at the time the bonus was withheld and that he didn’t become disabled due to depression until much later. Even though the judgement was affirmed on appeal, it was ruled that the panel had used the incorrect standards to issue its judgement. Instead of examining more precisely how Mr. Igweike’s day-to-day activities were impacted and determining if he suffered a negative mourning reaction, it had placed more emphasis on whether or not he was depressed at the time in question.

Keep in mind that a person has a disability under Section 6 of the Equality Act of 2010 if:

  • They suffer from a disability, either mental or physical.
  • This disability has a significant impact;
  • The disability has a long-lasting negative impact, has persisted for at least a year, is anticipated to continue for at least a year or more, or is expected to last for the rest of the person’s life, and
  • The disability makes it difficult for the person to perform daily tasks as usual.

It was felt that too many tribunals started with the disability rather than considering the impact on daily life first and determining whether it was severe enough to be considered a disability.

It can be difficult to tell the difference, and at the appeal HH Judge Auerbach stated: “In some cases, a bereavement results in typical grieving symptoms that do not indicate any impairment. Others may experience something more severe that eventually results in a disability.”

The Employment Appeal Tribunal also gave an urgent warning to employers, reminding them to take into account an employee’s performance at work while examining their regular day-to-day responsibilities. It is wrong to focus just on their extracurricular activities.

To determine whether the grief is more than simply minor or insignificant, it is important to first consider the impact it has had on the person. And while a person’s success at work should unquestionably be taken into account, making that judgement by only comparing them to their coworkers might have its own issues. For instance, a high achiever may experience a drop in performance but still outperform some of their less talented coworkers.

A group of employees will inevitably experience natural fluctuations, but courts like to establish whether any such volatility is abnormal given the worker in question’s prior performance.

Thankfully, there was no evidence to suggest that Mr. Igweike’s performance had significantly declined after his loss in the Igweike v. TSB Bank case. The Employment Appeal Tribunal agreed with the original judge’s conclusion that Mr. Igweike’s sadness did not constitute a disability.

Employers must carefully examine how they will support grieving employees even if they are not considered to be disabled for the purposes of the Equality Act.

While the rising number of Covid fatalities dominates the news, the mental pain suffered by those left behind impacts a much larger population. For many, the stress becomes unbearable and drives them into disability.

Employers all across the nation will need to be understanding and use extreme caution when trying to both assist and evaluate these people. Those who don’t should be ready to deal with accusations of prejudice.

For more information, get in touch with SGT Law Firm.

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