McManus v British Airways plc [2026] EAT 155

In brief

The Employment Appeal Tribunal dismissed an appeal against a tribunal's finding that a remark by an occupational health practitioner, about who Access to Work is for, was not reasonably to be regarded as having a harassing effect under section 26(1)(b) of the Equality Act 2010, although it was unwanted and related to the claimant's disability [6], [11], [61], [63]. The EAT held that, in applying section 26(4), a tribunal should in overview ask two questions: did the claimant in fact perceive the conduct as having such an effect, and if so is it reasonable to regard the conduct as having that effect in all the relevant circumstances [30]. The first question is for the tribunal to decide on all the evidence and the claimant's statement is not necessarily decisive [31]. What are relevant circumstances is a fact-sensitive question, and the EAT will interfere only for the limited reasons it lists [32]. The claimant's mental ill health can properly be treated as a relevant circumstance at the second stage but is not bound to lead to the conclusion that it is reasonable to regard the conduct as having that effect [35]-[38], following Harkins [34]. The tribunal had not erred by considering the remark in the context of a medical consultation [46]-[52], or by failing to treat it as part of a cumulative course [54]-[59]; the perversity challenge failed [60]-[61].

Key provisions

• para-30 — Two-stage overview of section 26(4) : Per [30], although section 26(4) lists three matters, (b) and (c) are intertwined, and in overview there are two substantive stages: first, did the claimant in fact subjectively perceive the conduct as having a proscribed effect; second, if so, is it objectively reasonable to regard it as having that effect in all the relevant circumstances of the case. The statutory text is set out at [16], and the earlier statements in Dhaliwal [17]-[18], Grant [19] and Pemberton [20] are recorded.
• para-31 — The claimant's own statement is not necessarily decisive on perception : Per [31], the first question is subjective in the sense that it is about what the claimant in fact perceived, but it is for the tribunal to decide the answer, drawing on all the evidence; a claimant's statement that she held that perception may not be decisive, and the tribunal may decide that, despite what she now says, she did not.
• para-32 — Relevant circumstances are fact-sensitive; narrow grounds for EAT interference : Per [32], 'all the circumstances' means all the relevant circumstances, which are for the tribunal's appreciation and evaluation, as is the weighing of them. The EAT cannot intervene unless the tribunal clearly failed to take into account a circumstance no reasonable tribunal could have treated as irrelevant, took into account one no such tribunal could have treated as relevant, or reached a conclusion that is truly perverse in the Yeboah v Crofton sense. Per [36], Parliament has not prescribed what may be regarded as relevant circumstances.
• para-37 — Mental ill health may be a relevant circumstance but does not decide the outcome : Per [37]-[38], it would not in principle be wrong to take a claimant's mental ill health into account at the section 26(4)(b) and (c) stage even though it is a personal or subjective feature; whether it is objectively reasonable to treat the conduct as having the proscribed effect remains for the tribunal on all the relevant circumstances. A finding that mental ill health was relevant is not bound to lead to the conclusion that the conduct should reasonably be regarded as having that effect; in a case where the context is a legitimate management enquiry into an unavoidably sensitive subject, that context may be particularly relevant. Per [34], the EAT followed Harkins [36] and found it not manifestly wrong. Per [33], paragraph 7.18(b) of the EHRC Employment Code, which mentions the worker's mental health, is not at odds with a correct analysis of the law.
• para-19 — The words of section 26(1)(b) are strong words : Per [19], quoting Grant v HM Land Registry at [47], tribunals must not cheapen the significance of the words in section 26(1)(b); they are an important control to prevent trivial acts causing minor upsets being caught by harassment. Per [49], the tribunal had followed Grant and Pemberton in saying that 'violating dignity' and 'creating an intimidating environment' are deliberately strong words and that it is not just a question of incorrect or inappropriate behaviour.
• para-54 — The tribunal considered the remark in context and did not wrongly isolate it from the other remarks : Per [54]-[59], reading the tribunal's decision fairly and as a whole, it had not compartmentalised the remark or ignored the overall setting: its structure followed the list of issues and it had stated at its [144] that it had taken account of all the circumstances. Per [46]-[47], it was entitled to treat as significant that the remarks were made by an occupational health practitioner during an assessment, without treating the context as a free pass. Per [60]-[61], the perversity challenge was not made out.

When relevant

Assessing whether conduct amounted to harassment by its effect under section 26(1)(b) and (4) of the Equality Act 2010 [16], [30]-[38]: the two-question structure, how a claimant's health or other personal circumstances feed into the reasonableness question, and the limits on appeal. The facts are disability-related harassment in occupational health, so it is indirect authority for gender reassignment cases and must be read as such: the statutory test is the same text for each protected characteristic [16]-[17] but the judgment decides nothing about gender reassignment. Decision support, not legal advice.