Claimants alleging disability discrimination have to show that they have a long-term impairment which has a substantial adverse effect on their day-to-day abilities. In Igweike v TSB Bank plc, the Employment Appeal Tribunal (EAT) held that although a life event such as a bereavement can cause an impairment, that does not mean that it will automatically have that effect in each and every case.
Basic facts
Soon after returning from a visit to Nigeria in May 2016, Mr Igweike’s father passed away. Following the bereavement, he experienced a lot of anger and guilt as well as fatigue, confusion and anxiety. He went to see his GP around this time but did not mention his mental health.
After returning to work following the funeral in August, his employer asked him to attend a meeting saying that there were problems with his performance. A few months later, he was told that he would not receive a bonus. He lodged a grievance about it, but he was told in March 2017 that this had been unsuccessful.
During this time Mr Igweike worked overtime shifts, took on an additional job as a doorman and continued to visit the gym. He did not take any sick leave. In April and August 2017, he went to see his GP again complaining of depression.
In July 2017 he brought a number of claims, including disability discrimination on the basis that his employer should have made reasonable adjustments covering the time period from August 2016 until March 2017. The bank challenged his assertion that he was a disabled person within the meaning of the Equality Act 2010.
Tribunal decision
The tribunal held that, at the time of the alleged discrimination, the symptoms about which Mr Igweike complained did not amount to the mental impairment of depression within the meaning of the Equality Act 2010. Instead, they were a “typical reaction” to the loss of a parent.
However, even if they did amount to a mental impairment, it went on to hold that the symptoms did not have a “substantial adverse effect” on his “day-to-day” activities, as required by the Act, given the evidence that Mr Igweike had, during the relevant time, worked overtime and taken on an additional job. Finally, there was insufficient medical evidence to conclude that any disability he might have was likely to last for a year or more.
Mr Igweike appealed arguing, among other things, that the tribunal had wrongly assumed that a grief reaction could not be an impairment unless or until it had developed into a depression.
EAT decision
Dismissing the appeal, the EAT held that the tribunal judge had accepted that there was a cause for the experience which Mr Igweike described and that it was a genuine reaction to the death of his father.
However, although the judge accepted that a grief reaction could become an impairment over time, he had drawn a valid distinction between a normal reaction to an adverse and tragic life event and something more profound that develops into an impairment. He had not, therefore, made the mistake of thinking that there had to be a clinically well-recognised condition or that an impairment could only be proved by medical evidence.
In coming to that conclusion, the judge was right to note that Mr Igweike’s level of concentration had been affected but not enough to stop him from carrying out his duties. The fact that his performance was back on track by February 2017 militated against a picture “of a very great falling off” after the death.
As such, the judge was entitled to find, on the evidence, that the bereavement was not the major contributor to the deterioration of his performance during the latter half of 2016.
Comment
This case is a reminder that a mental or physical impairment must have lasted or be likely to last for a year or more to qualify as a disability under the Equality Act 2010.