< Back to Cases
Disability Harassment
Rad Kohanzad acted for Mrs Harkins in Harkins v Marks and Spencer plc [2026] EAT 131, an appeal concerning disability harassment, discrimination arising from disability and the duty to make reasonable adjustments under the Equality Act 2010. Mrs Harkins challenged the dismissal of claims arising from how her employer addressed her performance, mental health and duties during the COVID-19 pandemic. The Employment Appeal Tribunal (EAT) dismissed the appeal, providing useful guidance on how disability-related vulnerability should inform the harassment test and when an employer may reasonably discuss performance concerns.
Background
Mrs Harkins had worked for Marks and Spencer since 1995. By the time of the events in question, she was a Visual Merchandising Team Manager, responsible for work on the shop floor and supervising a small team.
She had depression and generalised anxiety disorder, and the parties accepted that she was disabled under the Equality Act 2010. During the COVID-19 pandemic, her anxiety about contracting the virus and passing it to her clinically vulnerable husband became severe. After a panic attack in January 2021, arrangements were made for her to spend less time on the shop floor.
Her claims arose from several workplace interactions. These included a performance review in which she received a “missed” rating, a manager asking whether she had considered giving up her management responsibilities to care for her husband, and a manager acknowledging that he had not read her wellbeing documents in full. She also alleged that colleagues had discussed her ill health inappropriately and that Marks and Spencer should have removed her from shop-floor duties.
Her employment ended on 4 March 2022, when she was dismissed on capability grounds after a prolonged period of sickness absence and an occupational health report concluded that there was no foreseeable return-to-work date.
The Employment Tribunal dismissed her claims, including disability harassment, discrimination arising from disability and failure to make reasonable adjustments. Mrs Harkins appealed on eight grounds. The EAT considered whether the Tribunal had made errors of law in applying the relevant statutory tests or whether its conclusions were findings of fact it was entitled to reach.
Disability harassment: unwanted conduct and its effect
Under section 26 of the Equality Act 2010, harassment occurs where a person engages in unwanted conduct related to a protected characteristic and the conduct has the purpose or effect of violating the claimant’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment. Where the claimant relies on the effect of the conduct, the Tribunal must consider the claimant’s perception, the other circumstances and whether it was reasonable for the conduct to have that effect.
The EAT explained that whether conduct is unwanted is a subjective question: the Tribunal must consider how the employee actually felt about it. The absence of an objection does not automatically mean that conduct was welcome.
However, the claimant’s perception is not the whole test. The Tribunal must also assess whether the alleged harassing effect was reasonable in the circumstances. Genuine distress does not, on its own, establish harassment.
A particularly important part of the judgment concerns employees with mental health conditions. The EAT said that an employee known to have anxiety or PTSD may reasonably need to be treated with greater sensitivity and care. Their vulnerability is relevant when assessing whether conduct could reasonably have the alleged harassing effect.
At the same time, the law must allow employers to manage their staff. A manager may need to raise genuine performance concerns or discuss how a disability affects work. The mere fact that such a discussion is unwanted, upsetting or related to disability does not necessarily make it harassment.
The manner and context of the discussion matter. Harassment may arise where concerns are fabricated, raised disproportionately, discussed in a humiliating setting, communicated aggressively or insensitively, or pursued relentlessly. The EAT therefore emphasised a contextual assessment rather than a rule that either all performance management is permissible or all upsetting management conduct is harassment.
Applying the harassment test to the management discussions
Mrs Harkins argued that the Tribunal had wrongly rejected her harassment complaints, including her manager’s question about whether she should give up her management responsibilities.
The EAT considered the context of that question. Mrs Harkins had asked about reducing her working week partly to help care for her husband and partly because of her mental health. Her manager’s question was connected to that request, but the Tribunal had found that he was considering whether a shorter working week would help or instead increase her stress.
The EAT considered that the Tribunal was entitled to find that it was not reasonable to regard the question as having the alleged harassing effect. That conclusion remained open to the Tribunal even taking account of Mrs Harkins’ known vulnerability and the greater sensitivity that could reasonably be expected of her manager.
The EAT also considered the performance review. Although the review was upsetting, the Tribunal had found that there were genuine concerns about Mrs Harkins’ leadership and that she accepted legitimate performance concerns. The EAT did not find an error of law in the Tribunal’s approach to whether the relevant conduct was unwanted or related to her disability. Some of the arguments on appeal were academic because an essential element of the harassment claim—unwanted conduct—had not been successfully challenged.
The decision does not mean that a manager’s good intentions automatically prevent a finding of harassment. Nor does it mean that a disabled employee must tolerate insensitive management. The question remains whether the statutory test is met on the evidence, taking account of the conduct, the claimant’s perception and the surrounding circumstances.
Discrimination arising from disability
Section 15 of the Equality Act 2010 protects a disabled person from unfavourable treatment because of something arising in consequence of their disability, unless the employer can show that the treatment is a proportionate means of achieving a legitimate aim.
Mrs Harkins challenged the Tribunal’s findings concerning her manager’s question about stepping down from management and the employer’s perception that her performance was poor.
The EAT upheld the Tribunal’s conclusion on the management question. The Tribunal was entitled to find that the enquiry was a proportionate way of pursuing a legitimate aim. The EAT also rejected the argument that the perceived performance problems arose in consequence of Mrs Harkins’ anxiety. The Tribunal had found no evidential basis for the necessary causal link between her anxiety and her difficulties managing her team.
This distinction is important. A disability and an unfavourable workplace outcome may coexist, but a section 15 claim requires the relevant “something” to have arisen in consequence of the disability. The Tribunal must assess that connection on the evidence; it cannot simply assume it.
Reasonable adjustments: knowledge of substantial disadvantage
Under sections 20 and 21 and Schedule 8 of the Equality Act 2010, an employer’s duty to make reasonable adjustments depends, among other matters, on whether it knew or could reasonably have been expected to know that the disabled employee was likely to be placed at a substantial disadvantage.
Mrs Harkins argued that Marks and Spencer should have removed her from shop-floor duties. The employer knew, or could reasonably have been expected to know, about her disability. The issue on appeal was whether the Tribunal was entitled to find that the employer lacked the necessary knowledge of the likely substantial disadvantage associated with requiring her to work on the shop floor.
The EAT held that it was. The Tribunal had taken account of the adjustments already made to reduce her time on the shop floor, the absence of further panic attacks triggered by that work on her return, and the fact that neither Mrs Harkins nor the occupational health reports had indicated that she needed to be removed from the shop floor altogether. In those circumstances, the Tribunal could reasonably conclude that the employer lacked the requisite knowledge of a likely substantial disadvantage.
The EAT also rejected the challenge to the Tribunal’s conclusion that removing her from shop-floor duties was not a reasonable adjustment in the particular circumstances. It did not treat the absence of a request from Mrs Harkins as determinative. The nature of her role and her wish to retain her management responsibilities were also relevant.
The judgment reinforces that an employee does not have to identify a particular adjustment before the duty can arise. The legal questions are whether the relevant disadvantage and knowledge requirements are satisfied and, if so, whether the proposed step is reasonable in the circumstances.
What the EAT decided
The EAT dismissed all eight grounds of appeal. The Employment Tribunal’s dismissal of the claims therefore remained in place.
The judgment’s main points are:
Harassment is assessed contextually. The employee’s subjective experience matters, but the Tribunal must also decide whether the alleged harassing effect was reasonable in all the circumstances.
Disability-related vulnerability is relevant. Where an employer knows of an employee’s mental health condition, that may call for greater sensitivity in how performance concerns are raised and addressed.
Performance management is not automatically harassment. Genuine concerns may be discussed, but the manner, context and proportionality of the conduct remain relevant.
Reasonable-adjustment duties depend on the statutory requirements. Knowledge of a disability does not, by itself, establish knowledge that a particular working practice is likely to cause a substantial disadvantage.
These are applications and explanations of the existing statutory framework, rather than a new rule that all performance discussions involving a disabled employee are lawful or unlawful.
Relevance to Employment Tribunal appeals
For someone considering an appeal following a disability discrimination claim, this case illustrates the importance of identifying a legal error in the Tribunal’s reasoning rather than simply showing that the events were distressing or that a different conclusion was possible.
In a harassment claim, it may be important to establish whether the Tribunal applied the subjective test for unwanted conduct, assessed the claimant’s perception and the surrounding circumstances, and properly considered the reasonableness of the alleged effect. Where mental health is relevant, the Tribunal should take account of the employee’s known vulnerability without losing sight of the statutory test.
In a reasonable-adjustment claim, the distinction between knowledge of the disability and knowledge of the likely substantial disadvantage may be decisive. Evidence about the employer’s knowledge, adjustments already made, occupational health advice and the practical requirements of the role may all matter.
An unfavourable Tribunal decision does not automatically provide grounds for appeal. The EAT will not simply rehear the evidence or substitute its own view because another conclusion was possible. The question is whether the Tribunal made an appealable error of law.
If you have received an unfavourable Employment Tribunal decision involving disability discrimination, harassment or reasonable adjustments, I can review the judgment and advise on whether there may be grounds for appeal before you decide whether to incur the further costs of pursuing one. If you decide to proceed, I can also advise on and represent you in the EAT.
Find out more about my Employment Tribunal appeal review and advice service
Case details
Case: Mrs MG Harkins v Marks and Spencer plc
Neutral citation: [2026] EAT 131
Judgment date: 21 September 2026
Judge: Mr Recorder Seán Jones KC
Case number: EA-2023-000761-JOJ
Counsel for the Appellant: Rad Kohanzad, instructed by Lawson West Solicitors Limited
Counsel for the Respondent: Grace Holden, instructed by Marks and Spencer plc
Outcome: Appeal dismissed.
Official judgment: Read the full EAT judgment (PDF)
