Harkins v Marks & Spencer – Disability and Performance Management: Employers Can Still Have Difficult Conversations

If an employee has a disability, does it mean an employer can’t challenge their performance without risking a harassment claim?

Not necessarily, said the Employment Appeal Tribunal (EAT).

This week’s case highlights an important distinction in disability discrimination law: employers are not prevented from having legitimate conversations about performance, management responsibilities or reasonable adjustments simply because an employee is disabled.

In Harkins v Marks & Spencer Plc [2026] EAT 131, the Claimant, a Visual Merchandising Team Manager, brought claims including disability harassment, discrimination arising from disability and failure to make reasonable adjustments.

The EAT dismissed the appeal.

What was the background?

The Claimant had generalised anxiety disorder and depression and was a disabled person for the purposes of the Equality Act 2010.

Among other allegations, she complained that:

• She was asked whether she felt able to continue in her management role;
• She received a “missed” rating in her end-of-year review;
• Her line manager asked whether she had considered stepping down from management responsibilities to care for her husband; and
• Her employer had failed to make a reasonable adjustment by removing her from shop-floor duties.

Why did the EAT reject the appeal?

The EAT emphasised that employers must be able to address genuine performance concerns and explore possible adjustments without every such conversation becoming harassment.

The EAT explained that there may be harassment where management concerns are fabricated, raised disproportionately, communicated aggressively or insensitively, or where an employee is repeatedly targeted.

However, the fact that a conversation is upsetting or relates to an employee’s disability does not, by itself, establish harassment.

In this case, the Tribunal was entitled to find that asking the Claimant whether she had considered giving up her managerial responsibilities was not reasonably capable of having the necessary harassing effect.

The question arose during a discussion about reducing her working days so that she could care for her husband and manage her own wellbeing. The EAT considered that, in those circumstances, the question could reasonably form part of a discussion about what working arrangements might be workable.

But there is an important warning for employers.

The EAT stressed that an employee’s vulnerability can be relevant.

Where an employer knows that an employee has an anxiety disorder or PTSD, greater sensitivity and care may reasonably be expected in how performance concerns are addressed.

The EAT also recognised that disproportionate, aggressive, disrespectful or insensitive management conduct can potentially amount to harassment.

The judgment therefore does not give employers a free pass to deal with disabled employees in the same way regardless of circumstances.

Instead, it reinforces the need to consider context, proportionality and the employee’s circumstances.

What about reasonable adjustments?

The Claimant argued that Marks & Spencer should have removed her from shop floor duties.

The Tribunal had found that the employer knew about her disability, but did not have the necessary knowledge that working on the shop floor placed her at the relevant substantial disadvantage. The EAT upheld that conclusion.

The EAT also upheld the Tribunal’s finding that removing her from the shop floor was not a reasonable adjustment in the particular circumstances, noting that shop floor work was a key part of her role and that she had not indicated that the existing measures were inadequate.

The key takeaway:

• Disability does not prevent an employer from addressing legitimate performance concerns.
• Management conversations can still be lawful even where they are upsetting to an employee.
• Context matters when assessing whether conduct could reasonably amount to harassment.
• Employers should consider an employee’s disability and vulnerability when deciding how performance or workplace issues are raised.
• Reasonable adjustments depend on the particular circumstances, including what disadvantage the employee is actually placed at and what the employer knew or could reasonably have known.
• The safest approach is not to avoid difficult conversations but to have them thoughtfully, proportionately and with proper consideration of the employee’s circumstances.

Question for employers:

When managing an employee with a disability, are you focusing not only on what needs to be discussed, but also on how, when and in what context you have that conversation?

If you are or someone you know is going through something similar, get in touch with us.