Harkins v Marks and Spencer plc: EAT dismisses disability harassment appeal and sets out approach to unwanted conduct

The Employment Appeal Tribunal has dismissed a former Marks and Spencer manager's appeal against the rejection of her disability harassment, discrimination arising from disability and reasonable adjustments claims, while setting out an approach to harassment in performance management.

In Harkins v Marks and Spencer plc [2026] EAT 131, Mr Recorder Seán Jones KC heard the appeal on 25 June 2026. Rad Kohanzad appeared for the claimant and Grace Holden for the retailer. The claimant, who has depression and generalised anxiety disorder, was dismissed on capability grounds in 2022. An employment tribunal dismissed all her claims.

Four alleged acts of harassment were at issue: a manager asking at an end-of-year review whether she felt able to do her management role, alongside a "missed" rating; an alleged discussion of her ill health between an employee and a former colleague; a later manager asking whether she had considered stepping down to care for a family member, after she requested a four-day week; and that manager saying he had not fully read her wellbeing forms.

The judge reviewed the law before turning to the grounds. Whether conduct is unwanted is subjective, and "related to" a protected characteristic is broader than "because of". The statutory language on dignity and hostile environments is aimed at serious cases and must not be cheapened. Under section 26(4) of the Equality Act 2010, the claimant's perception is weighed against the circumstances and the reasonableness of the effect. The judge described a balance between managerial sensitivity and "reasonable robustness" in the worker. For employees with mental impairments, greater care may be expected, but there must be a limit, since employers cannot be made unable to discuss performance without committing harassment.

Management conduct can still amount to harassment where concerns are confected, disproportionate, humiliating, aggressive or relentless, the judge said. A colleague's mere reference to a protected characteristic is unlikely to suffice.

On the end-of-year review, the tribunal had applied the subjective test. The claimant's own admission that she was struggling with management was capable of shedding light on whether the question was unwanted. The unchallenged finding that the rating was not unwanted made the remaining complaints academic. The tribunal was entitled to reject the allegation of an inappropriate discussion, having accepted the manager's evidence.

The successor manager's enquiry produced the judgement's most critical passage. The tribunal's reasoning that it was unrelated to disability, distinguishing "stress of the role" from the anxiety disorder, was inadequately explained, the judge said. Nonetheless, it was entitled to find that it was not reasonable for the enquiry to have a harassing effect. It arose in a discussion about freeing time for caring and reflected a concern that the request might harm her wellbeing, and any concession about offensiveness would not be decisive. Similarly, the tribunal had applied the wrong test in treating the unread forms as not "unfavourable treatment", but its conclusion on effect was not perverse.

The section 15 claim failed because the enquiry was not unfavourable treatment or, if it was, was a proportionate means of achieving a legitimate aim. The tribunal had also found no evidence that perceived poor performance arose from the disability.

On reasonable adjustments, the tribunal found the employer knew of the disability from February 2020 but not of any likely substantial disadvantage from working on the shop floor, given the reduction in time agreed. The judge said that finding was not perverse, particularly as she had returned without further difficulty and made no complaint. The tribunal had not treated the lack of a request as determinative, so the remaining ground fell away. The appeal was dismissed.