The EAT confirms that an employee's mental ill health is relevant to a harassment claim but does not automatically make a remark unlawful

Background

In McManus v British Airways plc, the claimant, a cabin crew member, was accepted to be disabled by reason of depression, anxiety and social phobia. In early 2022, she was preparing to return to work after a long sickness absence.

The claimant was referred to the respondent's in-house occupational health (OH) service. During a telephone consultation, the OH practitioner asked direct questions, including whether the claimant had tried to commit suicide, and commented on the length of support she had received. When the claimant mentioned Access to Work, a government scheme that funds practical workplace support for disabled people, the practitioner said it was "not for people like you, it's for people in wheelchairs".

The claimant brought claims of direct disability discrimination, failure to make reasonable adjustments and disability-related harassment. Harassment is unwanted conduct related to a protected characteristic that has the purpose or effect of violating a person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. In assessing effect, a tribunal must consider the person's perception, the other circumstances and whether it is reasonable for the conduct to have that effect.

The employment tribunal dismissed all the claims. Although the remarks were unwanted and related to disability, it was not reasonable, in the context of a medical consultation, to regard them as having the required effect. The Access to Work comment was an ill-informed remark about the scheme's remit that did not reach the harassment threshold.

EAT decision

The claimant appealed regarding the Access to Work comment, arguing that the tribunal had failed to consider her mental ill health when assessing reasonableness and had viewed the remark in isolation from the rest of the meeting.

The EAT dismissed the appeal. It held that the tribunal had to consider whether the claimant actually perceived the comment as having the alleged effect and, if so, whether it was reasonable to regard the comment as having that effect in all the relevant circumstances.

The claimant’s mental ill health could be relevant to that assessment, but did not determine the outcome. Reading the tribunal’s decision as a whole, the EAT was satisfied that it had taken account of the claimant’s disability, her anxious state and the distressing nature of the meeting.

The tribunal was also entitled to weigh the context: the comment was made during an occupational health assessment, and the practitioner was mistaken about the support available through Access to Work. The EAT did not consider that the tribunal had overlooked the words “people like you” or the comment’s disability-related nature. It was entitled to conclude that, in all the circumstances, the comment did not have the required effect.

The EAT also rejected the argument that the tribunal had considered the comment in isolation from the rest of the meeting. Its decision, read fairly as a whole, showed that it had taken the wider context into account.

Learning points for employers

Employers should take known mental health conditions into account when planning sensitive conversations, such as absence reviews, OH assessments and performance meetings. A greater degree of care may be expected where an employee is known to have a condition such as anxiety.

Employers should ensure that managers and OH providers understand the purpose of any difficult questions and explain that purpose to the employee at the start of the meeting.

Employers should remind OH practitioners and managers that a medical or business context is not a licence for careless comments. Training should cover avoiding comparisons with other disabilities and checking information about schemes such as Access to Work before commenting.

Employers should keep clear notes of sensitive meetings and the reasons for questions asked, in case of a later claim.

For more information or advice, please get in touch with Lucy Cinnamond in our Employment team.