The Employment Appeal Tribunal has confirmed that a worker’s mental health can influence whether unwanted conduct amounts to unlawful harassment. But its latest ruling also reveals the difficulties employees face when trying to establish that insensitive treatment has crossed the legal line.
There is a familiar problem in workplace disputes involving mental health. An employee complains that something said by a manager, supervisor or occupational health adviser caused considerable distress. The employer responds that no offence was intended, that the conversation was part of an ordinary management process, or that the employee simply reacted too strongly.
For workers already struggling with anxiety, depression or other mental health difficulties, such responses can make a distressing experience even worse. They may feel that the very condition which makes them vulnerable is being used to dismiss their concerns.
But where does the law draw the line between an insensitive remark and unlawful harassment? Should someone experiencing anxiety or depression be expected to react in the same way as a person without those conditions? And how much weight should a tribunal give to the particular vulnerabilities of the individual concerned?
These questions were considered by the Employment Appeal Tribunal in McManus v British Airways plc [2026] EAT 155, a judgment delivered on 9 October 2026.
The decision offers both encouragement and a warning to workers and their representatives. It confirms that mental ill health can be relevant when deciding whether unwanted conduct has a legally recognised harassing effect. At the same time, it demonstrates that even a genuinely upsetting, inappropriate and disability-related comment will not necessarily amount to unlawful harassment.
For trade union representatives, understanding that distinction is essential.
A difficult return to work
Mrs McManus was a British Airways cabin crew employee who had experienced depression, anxiety and social phobia during the Covid-19 pandemic. British Airways accepted that she was disabled for the purposes of the Equality Act 2010.
Following a lengthy period of sickness absence, she was preparing to return to work in 2022.
That prospect was already causing considerable anxiety. Changes within British Airways meant she would not be returning to precisely the same working arrangements she had previously known. She was also seeking adjustments that would help her manage her health conditions and resume her employment.
She had received support from a mental health support team and had developed a wellness and recovery action plan. She regarded the recommendations arising from that support as important to making a successful return.
British Airways referred her to its occupational health service for assessment.
The subsequent telephone consultation lasted approximately two hours and, according to the tribunal’s findings, did not go well.
Mrs McManus was nervous about the assessment. She found the occupational health practitioner’s approach upsetting, and there were disagreements over what adjustments were appropriate and whose recommendations should carry weight.
During the consultation, the occupational health practitioner made a remark about Access to Work, the government scheme that can provide practical and financial support to help disabled people obtain or remain in employment.
The practitioner told Mrs McManus:
“not for people like you, its for people in wheelchairs”
The tribunal accepted that the remark had been made and related to her disability.
It also accepted that the practitioner had a poor understanding of the scheme. Access to Work is not confined to people with physical disabilities or wheelchair users. Support may also be available to eligible workers experiencing mental health difficulties.
Mrs McManus regarded the comment as harassing and brought proceedings alleging disability discrimination, failures to make reasonable adjustments and disability-related harassment.
However, the original Employment Tribunal dismissed her claims.
Her appeal concentrated on the rejection of the harassment complaint arising from the Access to Work remark.
What does the Equality Act actually require?
Section 26 of the Equality Act 2010 defines harassment related to a protected characteristic.
In broad terms, a person harasses another where they engage in unwanted conduct related to a relevant protected characteristic, such as disability, and that conduct has the purpose or effect of violating the person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.
There is an important distinction between conduct intended to cause such harm and conduct which has that effect regardless of intention.
If an employer or manager deliberately humiliates a disabled employee because of their disability, the purpose of the conduct may provide the basis for a harassment claim.
But unlawful harassment can also arise where there was no intention to cause humiliation or offence.
That does not mean every unpleasant or thoughtless remark is unlawful.
Where a claimant relies on the effect of the conduct, section 26(4) requires the tribunal to consider three matters: the claimant’s perception, the other circumstances of the case, and whether it was reasonable for the conduct to have the alleged effect.
This creates an assessment that combines the individual’s actual experience with an objective consideration of whether the conduct could reasonably be regarded as sufficiently serious in the circumstances.
An employer cannot escape responsibility simply by claiming that no harm was intended.
Equally, an employee cannot establish unlawful harassment solely by demonstrating that they were upset.
Both sides of that equation matter.
Mental health is part of the circumstances
The central legal question in McManus concerned how the tribunal should approach the claimant’s mental health when assessing reasonableness.
British Airways argued that her mental ill health was relevant to establishing how she subjectively perceived the remark, but should not separately influence the objective assessment of whether the remark could reasonably be regarded as having a harassing effect.
The Employment Appeal Tribunal rejected that narrow approach.
His Honour Judge Auerbach confirmed that mental ill health could properly form part of the circumstances considered when deciding whether the conduct had the prohibited effect.
That is an important clarification.
An employee with a recognised anxiety disorder may experience particular language, behaviour or circumstances differently from someone without that condition.
A worker recovering from depression may be especially vulnerable during a return-to-work assessment. Someone with post-traumatic stress disorder may react particularly strongly to certain forms of confrontation or questioning.
These individual circumstances cannot simply be ignored when assessing what it was reasonable for the conduct to do.
The law does not require tribunals to imagine an entirely abstract employee, stripped of personal characteristics, and then judge every workplace interaction against that fictional individual’s reactions.
The person who experienced the conduct matters.
However, the EAT was equally clear that mental ill health does not automatically make every reaction objectively reasonable.
The tribunal must still consider the whole picture, including the nature of the conduct, the circumstances in which it occurred and its actual effect.
There is an important difference between saying that a condition must be taken into account and saying that the condition determines the outcome.
McManus establishes the former, not the latter.
Why did British Airways win?
At first sight, the result may seem surprising.
The occupational health practitioner had made an inaccurate and insensitive remark about a disability support scheme. Mrs McManus was genuinely distressed, and the comment related directly to her disability.
Yet the tribunal found that the legal threshold for harassment had not been met.
The EAT agreed that this conclusion was legally open to the tribunal.
A major consideration was the setting in which the remark had been made.
This was an occupational health assessment intended to establish what support Mrs McManus needed to return to work. Such consultations can involve difficult, personal and sometimes uncomfortable questions.
The original tribunal accepted that some of the practitioner’s approach could have been expressed differently. Nevertheless, it considered that the practitioner was carrying out a legitimate medical assessment, and that the Access to Work remark arose in a discussion about potential adjustments.
The tribunal also considered the fact that the offending remark formed a relatively small part of a two-hour consultation.
The practitioner appeared to have misunderstood the scope of Access to Work rather than deliberately sought to belittle the claimant.
Importantly, a lack of malicious intention would not, by itself, defeat a harassment claim based on the effect of conduct. But the nature and context of the remark were relevant to evaluating that effect.
The EAT concluded that the tribunal had considered Mrs McManus’s mental health and distress alongside these other circumstances.
It had not simply assumed that her anxiety was irrelevant.
Nor had it been required to reach a different conclusion because her distress was genuine.
Judge Auerbach emphasised that an appeal tribunal should not substitute its own assessment merely because it might have evaluated the facts differently. Intervention requires a legal error or a decision that meets the demanding threshold for perversity.
That threshold had not been reached.
The appeal was dismissed.
This is an important limitation on what the case decides. The EAT did not establish that remarks of this kind are generally acceptable, or that similar conduct could never constitute harassment. It decided that the original tribunal’s assessment was legally permissible on the particular facts.
Insensitive treatment is not automatically unlawful
There is an uncomfortable but necessary lesson in this judgment.
Employment law does not provide a remedy for every instance of insensitive, unfair or thoughtless workplace behaviour.
A manager may handle a conversation badly. An HR adviser may misunderstand an employee’s condition. An occupational health practitioner may use language that is unnecessarily blunt or dismissive.
Such conduct may justify a complaint, additional training, an apology or changes to workplace procedures without necessarily satisfying the legal definition of harassment.
That distinction can be frustrating for workers.
Someone who experiences genuine humiliation may understandably struggle to accept that a tribunal can recognise their distress yet conclude that no unlawful harassment occurred.
But the distinction is deliberate. The Equality Act requires the conduct to have a particular purpose or effect. It is not a general statutory code of workplace courtesy.
This should not encourage employers to tolerate poor treatment.
An employer interested only in whether conduct crosses the threshold for legal liability is setting its standards far too low.
Workplaces should be places where employees are treated with dignity because that is the right way to manage people, not merely because a tribunal might otherwise award compensation.
In occupational health consultations, that responsibility is especially important.
Employees may already feel vulnerable because of illness, prolonged absence or uncertainty about whether they will be permitted to return to their normal duties.
They should be able to expect accurate information, professional sensitivity and genuine consideration of their circumstances.
The importance of Access to Work
The comment at the centre of McManus also highlights a wider problem: misunderstanding the support available to disabled workers.
Access to Work is a government programme designed to help eligible disabled people obtain or remain in employment. Depending on individual circumstances and eligibility, it can provide assistance with practical workplace support, specialist equipment, travel or mental health-related support.
It is not exclusively intended for people who use wheelchairs.
For someone seeking to return after an extended absence caused by depression or anxiety, the possibility of Access to Work assistance may be significant.
An inaccurate statement suggesting that such support is unavailable could discourage someone from seeking help that might make continued employment possible.
Employers and occupational health professionals therefore have a responsibility to understand the scheme properly.
They should also distinguish between Access to Work assistance and an employer’s own obligations under the Equality Act.
An employer’s duty to make reasonable adjustments does not disappear simply because external assistance might be available.
Nor should an employee be expected to navigate complex support arrangements without appropriate guidance.
In McManus, the tribunal concluded that the practitioner’s misunderstanding did not amount to unlawful harassment. That should not obscure the practical importance of ensuring that employees receive accurate advice about the assistance available to them.
What this means for workers experiencing mental ill health
For employees with anxiety, depression or other mental health conditions, the judgment offers a significant point of principle.
Their health can be relevant not only to explaining why they experienced distress but also to the legal assessment of whether it was reasonable for the conduct to have that effect.
A tribunal considering a harassment complaint should not disregard a relevant mental health condition simply because the assessment contains an objective element.
This has practical implications.
Suppose an employee with a diagnosed anxiety disorder is subjected to repeated aggressive questioning by a manager who knows about the condition.
The employee becomes distressed and complains that the questioning created an intimidating environment.
It would be wrong to assess that complaint without considering the employee’s anxiety where it is a relevant circumstance.
The manager’s conduct might be regarded differently if the employer knew that particular approaches were likely to cause significant distress.
But this does not mean that the employee’s condition prevents the employer from asking difficult questions.
Employers remain entitled to investigate complaints, address performance concerns, manage sickness absence and make legitimate decisions about employment.
The question is how they exercise those responsibilities.
There is a difference between asking necessary questions respectfully and using an unnecessarily humiliating or aggressive approach.
The presence of a mental health condition may affect where that line is drawn, but it does not remove the line altogether.
Why the wider pattern of behaviour matters
One of the difficulties in harassment cases is that individual remarks may appear relatively minor when considered separately, even though their cumulative effect is much more serious.
A worker may experience a series of comments, dismissive responses or confrontational meetings that gradually create an intimidating or humiliating environment.
Each incident might appear insufficient on its own.
Taken together, they may present a different picture.
This was another issue raised in McManus.
Mrs McManus argued that the Access to Work remark should not be considered in isolation from other things said during the occupational health consultation.
The wider conversation had included sensitive questioning, disagreements about her proposed adjustments and an approach that she found distressing.
However, the EAT concluded that the tribunal had not ignored this wider context. It had considered the meeting as a whole and was entitled to distinguish the specific remark being challenged from other allegations that it had already assessed.
This is an important point for union representatives.
When representing a member who complains of harassment, it is necessary to identify both the individual incidents and the overall pattern.
Rather than relying upon a general assertion that management has been intimidating or bullying, representatives should establish what was said, when it was said, who was present and how the conduct affected the employee.
If several incidents are said to have produced a cumulative harassing effect, that should be explained explicitly.
The evidence may include emails, meeting notes, contemporaneous complaints, medical information and witness accounts.
It is also important to distinguish between conduct that is merely upsetting and conduct that can reasonably be regarded as violating dignity or creating one of the environments described in section 26.
A carefully documented history can help a tribunal understand the true context instead of viewing every incident as an isolated disagreement.
Evidence of vulnerability can be important
McManus demonstrates why representatives should give careful thought to evidence about a member’s mental health.
It may be established that an employee has depression or anxiety, but that does not necessarily explain how a particular incident affected them.
Where the link is relevant, medical evidence may assist.
An occupational health report, GP letter or specialist assessment might explain particular difficulties associated with the condition.
The employee’s own evidence will also be important.
A member may be able to describe why particular words or actions caused distress, whether similar incidents had occurred previously and what consequences followed.
Was the employee unable to continue working? Did the incident lead to an increase in symptoms? Was medical assistance sought? Did the employee complain at the time?
None of these matters is an automatic requirement for establishing harassment. Nor should a worker’s complaint be dismissed merely because they did not immediately report the incident or seek medical attention.
But relevant, reliable evidence can assist the tribunal in understanding the employee’s experience.
It is equally important to consider what the employer knew.
If an employer has been told about particular vulnerabilities, that may affect the context in which later conduct is assessed.
A manager who has received clear information about an employee’s mental health needs is in a different practical position from someone who has no knowledge of those difficulties.
That distinction does not automatically determine legal liability, but it may be significant when assessing the circumstances.
Harassment is not the only possible claim
Another important lesson is that workers should not assume harassment is the only legal route available when they experience insensitive or unfair treatment connected with mental health.
The Equality Act provides several distinct protections.
Where an employee is disabled within the meaning of the Act, the employer may have a duty to make reasonable adjustments.
A failure to take appropriate steps to remove substantial disadvantages may give rise to a claim even where there has been no unlawful harassment.
For example, an employer might refuse to consider changes to working hours, duties or procedures that could enable a disabled employee to remain in employment.
Depending on the circumstances, that could raise reasonable adjustment issues regardless of whether anyone made offensive comments.
Similarly, section 15 of the Equality Act addresses discrimination arising from disability.
This can occur where a disabled employee is treated unfavourably because of something arising in consequence of their disability, unless the employer can establish the relevant justification. The employer’s knowledge of disability and the statutory conditions must also be considered.
An employer that penalises an employee for disability-related absence or behaviour may therefore face questions quite separate from harassment.
Direct disability discrimination may also be relevant where an employee is treated less favourably because of disability.
These legal claims have different requirements and should not be confused.
In McManus, Mrs McManus had originally pursued several types of disability discrimination complaint, all of which were dismissed by the Employment Tribunal. The appeal concerned the particular harassment allegation arising from the Access to Work comment.
The decision should therefore not be interpreted as determining the outcome of every possible disability-related claim involving similar facts.
For union representatives, the practical lesson is to consider the full range of legal protections rather than placing every complaint under the heading of harassment.
A practical approach for trade union representatives
When a member reports harassment connected with mental health, the first task is to establish a clear account of events.
The representative should understand the precise conduct complained of and the circumstances in which it occurred.
It is then necessary to consider why that conduct is said to relate to disability and whether it had the purpose or effect required by section 26.
If the complaint concerns the effect rather than the purpose, McManus makes clear that the representative should address two questions.
Did the employee actually experience the conduct as violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment?
If so, was it reasonable to regard the conduct as having that effect, taking account of the relevant circumstances?
The employee’s mental health may be important to both questions.
But representatives should resist the temptation to argue that the existence of anxiety or depression, by itself, establishes that the employee’s reaction was reasonable.
The stronger argument explains how the condition affected the employee, what the employer knew, the nature of the conduct and why its effect should reasonably be recognised as unlawful harassment.
It may also be useful to examine whether the employer followed its own procedures, whether concerns were raised before the incident and whether less confrontational approaches were available.
Where management claims that difficult questioning was necessary, the representative can legitimately ask whether the questions were relevant, proportionate and conducted professionally.
A legitimate management purpose is not a licence to humiliate employees.
At the same time, a representative must recognise that necessary and appropriately conducted management conversations do not become unlawful harassment simply because they concern matters that an employee finds distressing.
The objective is to distinguish genuine harassment from other forms of workplace disagreement or poor management, while ensuring that legitimate concerns are not dismissed because the employee has a mental health condition.
The danger of labelling workers oversensitive
There is a broader concern arising from cases of this kind.
Workers experiencing mental ill health can sometimes find their credibility questioned precisely because of their condition.
An employee who reports aggressive management behaviour may be described as oversensitive, emotional or unable to cope with ordinary workplace pressures.
Such descriptions can be deeply unfair.
They may also discourage employees from disclosing mental health difficulties or seeking support.
McManus makes clear that mental ill health cannot simply be excluded from the legal assessment of reasonableness.
That matters because there is no single universal standard of emotional resilience against which every employee must be measured without regard to personal circumstances.
The same workplace interaction may have very different effects upon different people.
Recognising that fact does not mean abandoning objective legal standards.
It means applying those standards with a proper understanding of the circumstances of the person concerned.
There must still be limits. Employers must be able to conduct investigations, discuss performance and manage their workforce.
But those responsibilities should be exercised with reasonable sensitivity, particularly where an employee’s disability is known.
Employers who confuse legitimate management with a right to behave aggressively or dismissively may find themselves exposed to legal claims that could have been avoided through better management.
What Solidarity believes
Solidarity believes that protecting the dignity of working people must be a basic principle of employment practice.
Workers should not have to tolerate humiliation, intimidation or discriminatory treatment.
Those experiencing mental ill health deserve the same respect and consideration as employees with physical health conditions.
Mental health difficulties should neither automatically validate every complaint nor provide employers with an excuse to disregard genuine concerns.
The law must balance the need for effective management with the obligation to protect employees from unlawful treatment.
McManus illustrates how difficult that balance can sometimes be.
The judgment confirms that mental health can form part of the assessment of harassment, even at the stage where a tribunal considers whether the alleged effect was reasonable.
But it also demonstrates that the threshold for unlawful harassment remains substantial.
For employers, there is a clear practical message. Do not assume that an employee’s distress can be dismissed as an unreasonable reaction without considering their circumstances. Ensure that managers and occupational health professionals understand disability-related responsibilities and communicate with appropriate care.
For workers, the message is equally important. If you believe you have experienced harassment, document what happened, explain its impact and seek advice about the legal protections available.
For trade union representatives, the case reinforces the importance of constructing arguments around evidence, context and the precise legal test.
A poorly handled meeting may justify a grievance without establishing harassment. But a legitimate management process can still become unlawful if the conduct, purpose or effect crosses the statutory threshold.
The distinction must be examined carefully rather than assumed.
A right to dignity at work
The most significant aspect of McManus is not simply that British Airways successfully defended the harassment allegation.
It is the recognition that a worker’s mental health may be relevant when deciding whether unwanted conduct could reasonably have the effect of violating dignity or creating a hostile or humiliating environment.
That principle acknowledges an important reality about working life.
Employees are individuals, not interchangeable units who all respond identically to pressure, criticism or confrontation.
Their experiences, health conditions and vulnerabilities may affect how workplace behaviour impacts them.
The law is right to recognise that.
However, legal protection must be established through the facts of each case. A tribunal must weigh the employee’s experience against the nature and context of the conduct and the statutory definition of harassment.
There is no automatic answer.
For Solidarity, the wider principle remains straightforward.
A decent workplace should not require employees to endure unnecessary distress before anyone takes their concerns seriously. Nor should respect and sensitivity be reserved only for situations where an employer faces a realistic prospect of losing an Employment Tribunal claim.
Good employment practice demands more than compliance with the minimum legal standard.
Workers experiencing mental health difficulties should be supported, listened to and treated as individuals whose circumstances matter.
That is not an unreasonable expectation.
It is a fundamental part of creating workplaces in which people can work with confidence, security and dignity.
By Maria Camara
Legal reference: McManus v British Airways plc [2026] EAT 155, judgment of His Honour Judge Auerbach, 9 October 2026. The article considers the judgment alongside section 26 of the Equality Act 2010.
