Background
Mrs McManus, a British Airways cabin-crew employee, was disabled by depression, anxiety and social phobia. While contemplating a return from extended sickness absence, she participated in a two-hour telephone assessment with a British Airways occupational-health practitioner. The meeting was distressing for McManus, and the practitioner made several remarks she considered aggressive and demeaning.
Among them was a statement that Access to Work was “not for people like you, it’s for people in wheelchairs.” An employment tribunal found that this comment was unwanted, related to McManus’s disability and was perceived by her as harassment. It nevertheless dismissed the claim because, considering the occupational-health context and all the circumstances, it was not reasonable to regard the comment as violating her dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment under section 26 of the Equality Act 2010. McManus appealed.
The Court’s Holding
The Employment Appeal Tribunal dismissed the appeal. It held that the section 26(4) inquiry has two substantive stages: whether the claimant actually perceived the conduct as having a prohibited effect, and, if so, whether it was objectively reasonable, in all relevant circumstances, to regard the conduct as having that effect. Which circumstances are relevant, and the weight they receive, are fact-sensitive matters primarily for the employment tribunal.
A claimant’s mental ill health may properly be considered when assessing objective reasonableness; it is not confined to the subjective-perception stage. But such vulnerability does not necessarily make the conduct unlawful. Reading the tribunal’s reasons fairly and as a whole, the EAT found that it had considered McManus’s disabilities, anxiety, distress, the other remarks made during the consultation and the wider context. It was entitled to give particular weight to the fact that the remark arose during a legitimate occupational-health assessment and to conclude that, although incorrect or inappropriate, it did not meet section 26’s deliberately strong harassment standard.
The tribunal had neither improperly isolated the Access to Work remark nor reached a perverse conclusion. Its assessment therefore disclosed no error of law.
Key Takeaways
- Harassment by effect requires both the claimant’s actual perception of a prohibited effect and an objectively reasonable basis for regarding the conduct as having that effect in all relevant circumstances.
- Mental ill health may be relevant to objective reasonableness, but it does not automatically convert insensitive, incorrect or upsetting conduct into unlawful harassment.
- Context matters: tribunals may consider the legitimate purpose of an occupational-health consultation while still recognizing that a medical setting gives practitioners no blanket exemption for offensive conduct.
Why It Matters
The decision clarifies how tribunals should structure the section 26(4) analysis and confirms, following Harkins v Marks and Spencer plc [2026] EAT 131, that a worker’s mental-health vulnerability can inform the objective assessment. At the same time, the statutory language sets a demanding threshold that is not satisfied merely because conduct was inappropriate or profoundly upsetting.
The judgment also underscores the limited scope of appellate review. The EAT will generally not disturb a tribunal’s fact-sensitive evaluation unless it considered an impermissible factor, omitted a circumstance no reasonable tribunal could disregard, or reached a truly perverse result.