T McManus v British Airways Plc

Under section 26(4) of the Equality Act 2010, the tribunal asks whether the claimant actually perceived the conduct as having a proscribed effect and, if so, whether it is objectively reasonable to regard it as having that effect in all relevant circumstances. Identifying and weighing those circumstances is fact-sensitive. A claimant’s mental ill health may be relevant, but does not determine the objective question. In an occupational health assessment, the tribunal may weigh the purpose and context of the consultation alongside the claimant’s vulnerability. The EAT will intervene only for a material error in identifying relevant circumstances or where the tribunal’s overall conclusion is truly perverse.

Mrs McManus, a cabin-crew employee of British Airways Plc, brought disability discrimination and harassment complaints after an occupational health assessment connected with her return to work. The Employment Tribunal dismissed the complaints. Her appeal concerned one disability-related harassment complaint: an occupational health practitioner had said that Access to Work was not for people like her but for people in wheelchairs. The tribunal found the comment unwanted and related to disability, but held that it was not reasonable to regard it as having a proscribed effect. The central issues were whether the tribunal had considered the claimant’s mental ill health and whether it assessed the comment in the context of the wider meeting.

1. Appeal dismissed. The Employment Tribunal did not err in holding that the Access to Work comment was not reasonably to be regarded as violating the claimant’s dignity or creating a proscribed environment under section 26(1)(b) of the Equality Act 2010.

2. For section 26(4), the effect inquiry has two substantive stages: whether the claimant in fact perceived the conduct as having a proscribed effect, and, if so, whether it is objectively reasonable to regard it as having that effect in all relevant circumstances. The claimant’s actual perception is for the tribunal to determine from the evidence; her account is not necessarily decisive. The circumstances and objective-reasonableness questions are intertwined. This formulation accords with Richmond Pharmacology v Dhaliwal [2009] ICR 724 and follows Pemberton v Inwood [2018] EWCA Civ 564.

3. What counts as relevant circumstances, and the weight to give them, are fact-sensitive matters for the tribunal. The EAT may intervene if the tribunal takes account of a circumstance no reasonable tribunal could regard as relevant, fails to take account of one no reasonable tribunal could regard as irrelevant, or reaches a truly perverse conclusion. The strong statutory language controls the threshold: incorrect or inappropriate conduct, or upset alone, does not establish harassment. The guidance in Grant v HM Land Registry [2011] EWCA Civ 769 and Pemberton was relevant to that assessment.

4. A claimant’s mental ill health may be considered as a personal circumstance at the objective stage, even though it is particular to the claimant. It is not bound to make it reasonable to regard the conduct as having a proscribed effect. The tribunal must weigh it with the other relevant circumstances. The EAT approved and followed the approach in Harkins v Marks and Spencer plc [2026] EAT 131: vulnerability may call for greater sensitivity, but the assessment must also account for the context and avoid unrealistic expectations of employers. The EAT generally follows its previous decisions unless an established exception applies: British Gas Trading Ltd v Lock [2016] ICR 503 (EAT).

5. Read fairly and as a whole, the tribunal had considered the claimant’s anxiety, distress and wider experience. It was entitled to give significant weight to the occupational health assessment context and to the practitioner’s role. It had not isolated the remark from the rest of the meeting. Nor was its conclusion perverse: Yeboah v Crofton [2002] EWCA Civ 794.

• Employment Appeal Tribunal The appeal was dismissed: [2026] EAT 155 .
• Employment Tribunal The tribunal dismissed the claimant’s discrimination and harassment complaints after a hearing in September 2024. No citation for its decision is stated.