When does grief become a disability?

A recently published Employment Appeal Tribunal decision explores when a grief reaction is sufficiently severe and long-term to amount to a disability. As always, it is necessary to look carefully at the statutory definition of disability to determine whether or not it is satisfied.

In this context the key questions are likely to be:

• Has the grief reaction had a substantial and adverse effect on the bereaved person’s ability to carry out “normal day-to-day activities”?
• If so, is this effect long-term (ie likely to last more than a year or likely to recur)?

In this case the employment tribunal had concluded that the Mr Igweike was not a disabled person for the purposes of the Equality Act. There was little evidence (medical or otherwise) that the death of his father had the effect on work performance that he claimed. In addition, even assuming it had, what evidence there was suggested that the grief reaction was acute rather than long-term. The EAT dismissed his appeal, since on balance it considered the employment tribunal had addressed the relevant questions correctly.

The effect of a bereavement is unique to the individual concerned, and of course in some circumstances a bereaved person may be able to establish they are a disabled person. In many cases this will be because the bereavement has triggered the onset of depression or another physical or mental health condition. Mr Igweike’s case was not as clear cut. He was not suggesting that he was ill or unable to work. Instead he argued that, since he could not perform at his normal level because of a disability, it was discriminatory to withhold a performance bonus based on targets that had been set before his father died. 

One reason why many cases of bereavement may not qualify for protection is that the definition of normal day-to-day activities has been traditionally been interpreted in a fairly narrow way. That has been influenced by the guidance on matters to be taken into account relating to the definition of disability which, when looking at normal day-to-day activities, focuses primarily on fairly basic activities outside the workplace. To take one example which could be pertinent to cases of bereavement, it suggests that “inability to concentrate on a task requiring application over several hours” would not normally be regarded as having a substantial adverse effect on normal day to day activities, whereas “persistent distractibility or difficulty concentrating” would.

Particularly in the current climate, employers will wish to support bereaved employees as far as they are able, regardless of whether or not they satisfy the definition of disability. Although this latest case was resolved in the employer’s favour, it is a reminder that impact of bereavement may not simply be an inability to work at all, but impaired performance and productivity that can be long-lasting. In such cases timely intervention and appropriate support can make a significant difference.