Can Grief Amount to a Disability?Posted: 22nd December 2020

With the number of deaths in the UK associated with COVID-19 approaching 60,000 the personal toll taken on those dealing with bereavement whilst in employment is obvious. What is less obvious is whether grief can transition to a Disability within the meaning of the Equality Act 2010.

This is an important question because an individual who is recognised as suffering a Disability is entitled to the protection of the Law which makes it unlawful to discriminate against them by reason of that characteristic. A person is discriminated against most obviously if they are treated ‘less favourably’.

In a recent case the Employment Appeal Tribunal decided that a man whose father had died and had left him grief stricken was suffering a disability at a time when after a period of absence his Employer refused him the payment of a bonus.

His Employers case in arguing that he had not been discriminated against was that his grief was no more than the type of reaction the vast majority of us will suffer when coming to terms with the loss of a loved one and at his reaction had not been so bad as to cause him to suffer depression, which is regarded as a Disability under the Act.

The Court however decided that he was suffering a disability even though there was no medical evidence provided and it was accepted that he was not suffering from depression. Instead the Court said that it was more important to look at the extent to which he had been affected in his daily life and how long he had been affected in order to decide if he fell within the scope of the law.

For Employers employing staff who are experiencing bereavement and grief this is an important case because if you are dealing with an individual who may be suffering a disability you may need to consider providing ‘reasonable adjustments’ to enable them to continue to work in spite of their disability. This could include agreeing to time off to attend counselling sessions or medical appointments, or to work flexibly. ’Banana skins’ of taking disciplinary or performance management against such individual should also be avoided and colleagues should be asked to behave with sensitivity to avoid potential exposure to claims of harassment from individuals who will inevitably be feeling particularly sensitive.

Claims of unlawful discrimination can be tricky to deal with and expensive, not to mention the reputational damage which often ensues.

For advice on all aspects of Discrimination Law in Employment contact Graham Shannon at [email protected] or call on 0191 500 6989.