Appeal Against Rejection of Harassment Complaint Dismissed

When applying Section 26(4) of the Equality Act 2010 to determine whether conduct had the effect of violating a claimant's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the purposes of Section 26(1)(b), an Employment Tribunal (ET) should consider whether the claimant in fact perceived the conduct as having such an effect and, if so, whether it was reasonable in all the relevant circumstances to regard the conduct as having such an effect. The Employment Appeal Tribunal (EAT) made that observation in dismissing a woman's appeal against the rejection of a complaint of disability-related harassment, finding that the Employment Tribunal (ET) had not erred in law in concluding that a remark made during an occupational health (OH) assessment was not reasonably to be regarded as the effect referred to in Section 26(1)(b) (McManus v British Airways PLC).

The woman worked for an airline as a member of the cabin crew. She was disabled by reason of depression, anxiety and social phobia, which she had developed during the COVID-19 pandemic. She was contemplating a return to work following a long period of sickness absence and was referred to an OH practitioner. An OH assessment was conducted by telephone.

The woman brought ET complaints including disability-related harassment, alleging that the OH practitioner had subjected her to aggressive and demeaning behaviour, had failed to take her disability and her requests for reasonable adjustments seriously, and had told her that the government's Access to Work scheme was not for people like her but was meant for people in wheelchairs.

While the ET broadly accepted the woman's account of what had been said during the OH assessment, it did not consider that the OH practitioner's behaviour in general had amounted to an act of disability-related harassment. The ET found that the complaint that the OH practitioner had failed to take the woman's disability and the matter of adjustments seriously was not made out. It further concluded that saying that the Access to Work scheme did not deal with mental health conditions could not reasonably be said to have had the effect described in Section 26(1)(b). The woman appealed against the ET's decision relating to the remark about the Access to Work scheme.

Ruling on her appeal, the EAT rejected her argument that the ET had taken no account of her case that her reactions had been influenced by her disability. The ET had considered, as it had been entitled to do, that the context was an OH assessment and that the remark about the Access to Work scheme – correct or not – was in substance about the OH practitioner's understanding of whether the scheme could provide support for the woman, having regard to the particular nature of her disability. The ET had entirely accepted how anxious the woman had been about the OH assessment, how it had not unfolded in the way she had expected, that it had been a distressing experience for her and that she had perceived a number of things said by the OH practitioner as harassing. But its task was, specifically, to consider whether her legal complaints of harassment, including relating to the Access to Work remark, had been made out. The ET had not erred in that regard.