MG Harkins v Marks & Spencer Plc

Under the Equality Act 2010, whether conduct is unwanted is assessed from the worker’s subjective response. For harassment by effect, perception is only one consideration: the tribunal must also assess the circumstances and whether the effect is reasonable, taking account of a known mental impairment while preserving room for proportionate performance management. Genuine upset alone does not establish harassment. A claim of discrimination arising from disability requires a causal link from the disability to the matter said to arise from it and from that matter to the unfavourable treatment. For reasonable adjustments, an employer’s knowledge concerns the likelihood of substantial disadvantage; the employee need not request an adjustment, although their position may be relevant to whether it is reasonable.

Mrs Harkins, a disabled employee of Marks and Spencer plc, challenged the Employment Tribunal’s dismissal of her discrimination claims. The claims concerned alleged disability-related harassment, unfavourable treatment because of matters said to arise from her disability, and a failure to remove her from shop-floor duties as a reasonable adjustment. The appeal arose from the Tribunal’s reserved judgment sent to the parties on 5 May 2023. The central issues were whether the Tribunal applied the correct harassment tests, whether its findings on causation and justification under section 15 were sound, and whether the employer knew or ought to have known of a likely substantial disadvantage.

1. Appeal dismissed. The Tribunal’s dismissal of the claims stood.
2. For harassment, whether conduct was unwanted is a subjective question. The Tribunal could take the employee’s admission that she was struggling with management, and the context of an end-of-year review, into account when deciding how she felt about a manager’s enquiry. The Tribunal applied the correct test to that enquiry. Challenges to the missed rating were academic because the finding that it was unwanted was not appealed. The finding that no inappropriate health discussion had been established was also open to the Tribunal.
3. The effect inquiry under section 26(4) requires consideration of the claimant’s perception, the other circumstances and whether it is reasonable for the conduct to have the alleged effect. The claimant’s known mental impairment may call for greater sensitivity, but the assessment must also allow employers to manage work realistically. Good-faith performance concerns and discussion of possible adjustments may be raised proportionately. Fabricated concerns, disproportionate manner or timing, or relentless criticism may support a harassment finding. A colleague’s reference to a protected characteristic will ordinarily require something more, such as mockery, known sensitivity or intrusive insensitivity. The Tribunal was entitled to find that the manager’s question about relinquishing management duties to care for the claimant’s husband was not reasonably capable of the alleged harassing effect. Its reasoning on whether that conduct related to disability was insufficiently clear, but the error did not affect the result. The Tribunal used the wrong term when describing the manager’s failure fully to read the claimant’s well-being forms as not unfavourable treatment. That error was immaterial because the finding that the conduct could not reasonably have the alleged harassing effect was not perverse.
4. For section 15, the causal chain requires a link between the treatment and the relevant matter, assessed by examining the alleged discriminator’s state of mind, and a link between that matter and the disability, which is a question of fact. The Tribunal was entitled to find no evidence that the claimant’s anxiety caused her management difficulties. It also made no error in finding that the manager’s enquiry, if unfavourable, was justified as a proportionate means of achieving the legitimate aim of providing support.
5. For reasonable adjustments, the knowledge test concerns whether the employer knew or ought to have known that the disabled employee was likely to face substantial disadvantage; the disadvantage itself must exist for the duty to bite. The Tribunal could find that the employer lacked that knowledge after the claimant returned with reduced shop-floor duties and did not report further panic attacks or seek removal from the shop floor. An employee need not request a particular adjustment, though the Tribunal did not treat the absence of such a request as decisive. The remaining grounds failed.

1. Employment Appeal Tribunal. The appeal was dismissed: [2026] EAT 131 .
2. Employment Tribunal. By a reserved judgment sent to the parties on 5 May 2023, the Tribunal dismissed the claims. No citation for that judgment is stated.