Employment tribunal and court judgments | October 2026

Mrs McManus, a cabin crew employee of British Airways plc, brought claims including disability-related harassment arising from an occupational health (“OH”) assessment conducted while she was considering a return from a lengthy sickness absence.

She suffered from depression, anxiety and social phobia, which were accepted as disabilities. During the OH assessment, she was upset by a number of comments made by the practitioner, including a remark that Access to Work was “not for people like you, it’s for people in wheelchairs.”

The Employment Tribunal found that the comment was unwanted conduct related to her disability and that Mrs McManus subjectively perceived it as having a detrimental effect. However, the Tribunal concluded that, viewed objectively and in context, it was not reasonable to regard the comment as violating her dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. The Tribunal therefore dismissed all of her complaints.

The Claimant appealed and the Employment Appeal Tribunal (EAT) ultimately dismissed the appeal and upheld the Tribunal’s earlier decision.

The EAT confirmed that, under section 26(4) Equality Act 2010, tribunals must ask two questions:

• Did the claimant perceive the conduct as having the prohibited effect; and
• Was it reasonable, in all the circumstances, to regard it as having that effect?

The EAT held that a claimant’s mental ill health can be a relevant circumstance when assessing both questions, but does not automatically mean that conduct amounts to harassment. The EAT emphasised that identifying and weighing the relevant circumstances is primarily a fact-sensitive exercise for the Tribunal.

The Tribunal had been entitled to place significant weight on the occupational health context and conclude that the statutory threshold for harassment was not met.

The judgment is a welcome confirmation that not every insensitive, ill-judged or inappropriate comment related to disability will amount to unlawful harassment. Tribunals will consider both the employee’s subjective perception and whether it is objectively reasonable to regard the conduct as having had the prohibited effect.

However, employers must still be aware that in deciding both of these questions, an employee’s disability and vulnerability will be relevant factors (albeit not always determinative). Therefore, the case reinforces the importance of training occupational health providers and managers to communicate carefully and sensitively when dealing with employees experiencing ill health or disability – particularly in light of the expanded employer obligations relating to workplace harassment due to come into force later this month.

Whilst the employer ultimately defended the case at the Tribunal and the appeal at the EAT, the time, resources and costs likely incurred would have been significant. The litigation nevertheless demonstrates the value of ensuring occupational health providers and managers are properly trained and supported when dealing with employees experiencing mental ill health.

Mr B Kristensen was employed by Portman Healthcare Limited as a dental hygienist from 2008 until his summary dismissal in September 2021.

During his employment, he raised concerns about what he believed was a forged signature on a document within his personnel file and reported the matter to the police. The Employment Tribunal found that this allegation amounted to a protected disclosure for whistleblowing purposes. Following that disclosure, Mr Kristensen was suspended, investigated and ultimately dismissed for alleged misconduct, including matters connected with covert recordings and the forgery allegation.

The Tribunal dismissed his unfair dismissal and whistleblowing detriment claims, but he appealed to the Employment Appeal Tribunal.

The EAT allowed significant parts of the appeal and found that the Tribunal had made a number of legal errors:

1. In relation to unfair dismissal, the Tribunal had failed to identify the employer’s actual principal reason for dismissal and had instead referred only to the broad category of “misconduct”, which was insufficient.
2. The EAT also found that the Tribunal had taken too narrow an approach when assessing the alleged whistleblowing detriments. In particular, it was wrong to treat the suspension as a one-off act rather than an act extending over a period, and it was also wrong to confine the disciplinary investigation to its initial stages.
3. The EAT considered that the Tribunal had also failed properly to consider whether the alleged detriments formed part of a continuing series of similar acts.

The EAT allowed a number of grounds of appeal, set aside significant parts of the Tribunal’s decision, substituted findings in relation to certain detriment allegations, dismissed the appeal regarding wrongful dismissal, and remitted the remaining issues to the same Tribunal for reconsideration.

This decision serves as an important reminder that tribunals will closely scrutinise how employers manage concerns raised by whistleblowers and will expect clear evidence explaining why action was taken. Exercise real care and take advice prior to suspending a whistleblower.

Employers should:

• Take care to treat the whistleblowing disclosure separately from alleged misconduct. Employers may want to first investigate the allegations before taking disciplinary action;
• Treat suspension as a significant employment decision, not a routine procedural step or a “knee-jerk” reaction to concerns (however genuine). Employers should assess whether alternative options are appropriate before considering suspension, and ensure that any decision to suspend is kept under active review; and
• Ensure clear and transparent records are kept regarding the whole disciplinary process and be mindful that all decisions, actions and omissions may be carefully scrutinised. Tribunals may consider suspension, investigation, disciplinary proceedings and dismissal as part of a broader sequence of events when assessing whistleblowing detriment allegations.

Ms F Kaiser worked for Khans Solicitors between April 2019 and February 2021. She brought a number of claims which the Tribunal determined as follows:

• that a refusal to provide training and the dismissal of the claimant constituted discrimination because of something arising in consequence of disability;
• that the respondent had failed to make reasonable adjustments by not providing the claimant with a larger screen and/or screen protector and an ergonomic chair or a cushion;
• that the claimant had been subject to sex related harassment when she was told that if she did not wear a scarf she might find it easier to attract men; and
• that the claimant had been automatically unfairly dismissed for asserting a statutory right to be paid.

At the remedy stage, the Tribunal awarded over £109,000, including £25,000 for injury to feelings, £5,000 for aggravated damages and compensation relating to sickness absence. Khans Solicitors appealed only against the awards for aggravated damages and sick pay losses.

The EAT allowed the appeal in part and remitted the aggravated damages and sick pay awards to the same Tribunal for reconsideration. The EAT held that the Tribunal had failed to adequately explain why aggravated damages were justified and had not identified any additional injury caused by any aggravating conduct.

The EAT considered that aggravated damages are a form of compensation for injury to feelings and therefore must compensate for an additional injury beyond that already reflected in a conventional injury-to-feelings award. There must be:

• an additional aggravating factor (or factors), such as the employer’s conduct in handling the matter; and
• that aggravating conduct must have caused additional distress or injury to the claimant.

The EAT emphasised that aggravated damages are compensatory rather than punitive. They cannot be awarded simply because a tribunal considers an employer’s conduct particularly blameworthy.

The EAT also found that the Tribunal had not adequately explained how it had calculated compensation for the claimant’s sickness absence or why it awarded four weeks’ pay. The vast majority of the Tribunal’s liability findings and compensation award were unaffected.

An award of aggravated damages can be made where a discrimination complaint succeeds, but such awards should be relatively uncommon and require aggravating factors other than the discriminatory conduct itself. The decision reinforces that there is a clear causation requirement: employers will not be liable for aggravated damages unless the aggravating conduct can be shown to have increased the claimant’s injury.

In practice, employers should ensure that grievances, discrimination complaints and requests for adjustments are handled carefully, professionally and sensitively, as poor handling of concerns may increase compensation exposure even where the underlying discriminatory act has already been compensated.