McManus v British Airways: EAT clarifies role of mental ill health in harassment effect test

The Employment Appeal Tribunal has confirmed that a claimant's mental ill health can properly be weighed when deciding whether it was reasonable to regard conduct as harassment, while stressing that it does not dictate the outcome.

In McManus v British Airways plc [2026] EAT 155, His Honour Judge Auerbach dismissed an appeal by a member of cabin crew against the rejection of a disability-related harassment complaint arising from an occupational health assessment.

The claimant, who is disabled by depression, anxiety and social phobia, was preparing to return to work when a British Airways occupational health practitioner assessed her by telephone in March 2022. The employment tribunal found that the practitioner told her that Access to Work was not for people like her but for people in wheelchairs. It held the remark unwanted, related to disability and perceived by the claimant as harassing, but concluded that it was not reasonable to regard it as having a proscribed effect under section 26(1)(b) of the Equality Act 2010.

The test

Judge Auerbach said a tribunal should, in overview, ask two questions. Did the claimant in fact perceive the conduct as having the relevant effect? If so, is it reasonable to regard it as having that effect in all the relevant circumstances? What is relevant is fact-sensitive, and the EAT will intervene only if the tribunal treated as relevant a matter no reasonable tribunal could, ignored one that any reasonable tribunal would consider relevant, or reached a perverse conclusion.

The respondent argued that mental ill health goes only to the subjective question and cannot be counted again at the objective stage. The claimant said it was a relevant circumstance under section 26(4)(b) and (c). Following Harkins v Marks and Spencer plc [2026] EAT 131, the judge held that mental ill health may properly be considered at the objective stage but is not bound to lead to a finding that conduct should reasonably be regarded as harassing.

He distinguished evidence that a claimant held a perception, which may draw on mental ill health, from the separate question of whether that perception was reasonable. A legitimate enquiry into an unavoidably sensitive subject may also be a particularly relevant context.

The grounds

The claimant argued that the tribunal ignored her anxiety, treated her reaction as evidence of unreasonableness, recast the remark as a neutral error about Access to Work and considered it in isolation from other remarks found to have been made. Reading the decision fairly and as a whole, the judge disagreed. The tribunal had recorded her disability, nervousness and distress, referred back to those findings in its conclusions, and balanced the medical context against its own warning that it was no free pass for clinicians. Section 26(1)(b) uses deliberately strong words, as Grant v HM Land Registry and Pemberton v Inwood make clear.

Nor was the remark considered in isolation. The tribunal's description of it as the only remaining comment reflected the structure of the list of issues, in which the Access to Work allegation was also pleaded separately, and it had expressly considered the meeting as a whole. The perversity ground also failed.

The appeal was dismissed: the tribunal accepted how distressed the claimant was, but its task was to apply the statutory definition.

Mx Oscar Davies, instructed by OH Parsons LLP, appeared for the claimant. Jonathan Davies, instructed by Weightmans LLP, appeared for British Airways.