COVID related grief and when this might be protected by the Equality Act

As the number of deaths in the UK as a result of COVID-19 increase, there will be thousands who are suffering the pain of bereavement.  This Blog explores when the duties and liabilities under the Equality Act in relation to disability might kick in.

The case of Igweike v TSB Bank (2020) involves an employee whose father passed away.  The employee was grief stricken and the Tribunal accepted experienced pain, anger and grief, as well as fatigue, confusion and anxiety with the effect of a loss of concentration at work and a heavier consumption of alcohol.  He took some compassionate leave but as a result of concerns about his performance, he did not receive a bonus that year and raised a grievance.  Following rejection of his grievance he attended his GP and depression was noted with him being prescribed anti-depressants a few months later.  He asserted that not being awarded his discretionary performance bonus was because of being “off track” whilst he went through a period of grief.   

At the Employment Tribunal, it was found that he was not disabled at the relevant time, although he did become disabled later by reason of the depression.  However, on appeal the Tribunal was found to have applied the wrong tests.  It had focused on whether or not the individual was depressed rather than looking at whether or not he had an adverse grief reaction by putting insufficient emphasis on whether or not his normal day to day activities were affected by this at the time in question.

We are seeing more and more in the cases that the Tribunals are prepared to look at the impact on somebody’s life and look backwards from there to determine whether or not there is a physical or mental impairment, rather than looking at the question of impairment first and then looking at the impact on daily life.

Judges here obviously have a difficult line to tread.  They have to balance the sad but ordinary effects of bereavement which are likely to affect all of us from time to time against those cases where somebody’s health is affected in a way which goes beyond this and becomes disabling.  The Judge in this case 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 reminded the Tribunal in this case that when looking at normal day to day activities it isn’t just a question of looking at the impact on somebody’s activities outside of work.  There is a whole line of cases now pointing out that work related activities are included in this.  In this case, of course, the Claimant’s whole case was that his grief reaction affected his concentration which affected his performance at work which led to the poor rating and the loss of the bonus.

When it came to looking at the level of performance in the case, the EAT confirmed that the starting point is to look at the effect on the individual to form a view about whether it is more than minor or trivial.  It can involve looking at the position of fellow workers and taking into account the degree or extent of any difference in performance compared with the natural fluctuations that are to be found amongst a group of workers.  Currently the courts are looking at whether any degree in fluctuation in performance of the Claimant is outside the degree of fluctuation you would normally expect to see but they will also look at the individual’s track record.  You could have somebody who is not performing to their usual level, even though they are meeting the performance of work colleagues eg. a star performer suddenly becoming average.  In this particular case, fortunately for the employer there was nothing to show that this individual’s performance had varied significantly following the bereavement.

Where there is an inter-section between the grief suffered and depression, a Judge is always going to have to decide to what extent that depression is likely to last a year or more and medical evidence is likely to guide them in that decision.  In this case it was found that the Judge had correctly addressed this issue including that the individual was not disabled.

This suggests that the bar is set high and that is not to say that there won’t be cases where somebody’s previous medical health or underlying health conditions mean that they are tipped into disability when you add in the grief reaction.  As ever, employers need to be aware of this issue and get advice including medical advice in individual cases.

Even if somebody who has been bereaved isn’t disabled for the purposes of the Equality Act, employers still need to think carefully about how they support the individuals. I have joined a ‘Justice for COVID victims’ Facebook page primarily because my Granny died in a care home and I believe that if certain government decisions had been made differently, people in care homes would not have died in the numbers they have and the group is lobbying for an inquiry.

However, reading everybody’s posts on that page, it is clear that there are a large number of people affected by bereavement connected by COVID who are struggling for the following reasons:

1. Oftentimes they did not get to say goodbye to their loved one in the way that they would ordinarily.  They have not been able to give their loved one what they see as a ‘proper send-off’ due to restrictions on funeral arrangements.  This is heightening the trauma that people are feeling.
2. As the pandemic is not over, those people are now in a state of heightened fear including worrying about loss of other loved ones.  There are also tragically lots of people who have lost more than one family member, making this even worse.
3. This cohort of people are very sensitive to other people, for example, not complying with the requirements to wear PPE.  They are likely to be more sensitive in the workplace to perceive non-compliance by other people of COVID rules.  They find other people who are making jokes about death, saying they do not believe in COVID or otherwise being insensitive on the subject causing further anxiety and conflict in the workplace.  Employers are going to need to be sensitive and compassionate when this happens. 

More than ever before, there are going to be more people who tip over into disability, perhaps suffering from post-traumatic stress disorder and GP’s will only be just starting to get to grips with these issues.  Thus employers will have more people that they need to make reasonable adjustments for and clearly there may be more claims arising for those employers who do not deal with these issues carefully.

Refreshing Law Ltd

5 October 2020