When does an insensitive comment amount to harassment?

In the recent case of McManus v British Airways, the Employment Appeal Tribunal (EAT) clarified the approach to harassment under the Equality Act 2010 where the allegation is based on the effect of conduct rather than its purpose.

The EAT confirmed that a claimant’s disability and mental health can be relevant circumstances, but are not automatically decisive.

Background

Mrs McManus, a member of British Airways cabin crew, was returning to work after extended sick leave due to her disabilities of depression, anxiety and social phobia. As part of the return-to-work process, she attended an occupational health (OH) assessment.

Mrs McManus alleged that the OH practitioner made a number of comments amounting to harassment, most notably that Access to Work was ‘not for people like you, it’s for people in wheelchairs’. She brought various disability related claims, including for harassment all of which  the Employment Tribunal (ET) dismissed.  Mrs McManus appealed to the EAT.

ET and EAT Decisions

The ET and the EAT both agreed that the OH comment was unwanted conduct related to her disability and that Mrs McManus felt harassed by it.

However, both held that it was not reasonable to regard the comment as violating her dignity or creating a hostile, degrading or humiliating environment.

The EAT clarified that tribunals should ask:

1. Did the claimant genuinely perceive that the conduct violated their dignity or created a hostile environment?
2. If so, was it objectively reasonable to regard the conduct as having that effect in all the circumstances of the case?

The EAT held that mental ill health can be relevant at both stages of the test. However, it will not automatically make the claimant’s reaction reasonable, as the tribunal must consider all the circumstances, including the context in which the comments were made.

The EAT therefore upheld the ET’s dismissal of her claims.

Comment

This case is reassuring for employers, as it recognises that difficult conversations about health, capability and adjustments will not automatically give rise to harassment liability, even where an employee is upset. Not every insensitive or inaccurate comment will meet the higher threshold for harassment. However, tribunals will scrutinise both the content and manner of such discussions, particularly where an employee has known mental health conditions.

The EAT attached significant weight to the comments being made during an OH assessment, where questions about mental health had a legitimate medical purpose. Employers should therefore ensure there is a clear business, welfare or medical reason for discussing sensitive subjects with employees.

Employers should also exercise particular care and sensitivity with employees who have known mental health conditions. Difficult or sensitive conversations will not automatically amount to harassment, but their purpose, context, language and delivery will all matter.

Managers for example, should plan these discussions carefully, consider whether HR support is appropriate and record any agreed support or next steps.

If your business needs advice and support on managing sensitive conversations with employees, around health, capability or reasonable adjustments, please contact a member of our Employment team.