In Cunningham v British Broadcasting Corporation the Employment Appeal Tribunal (EAT) has recently decided that an employment tribunal had been wrong in finding that the employer did not know, and could not reasonably have been expected to know, that the claimant was disabled. The EAT substituted a finding that the employer did have knowledge of the claimant’s disability and asked a fresh tribunal to look at part of the claim again.
What was the background?
Ms Cunningham was employed by the BBC as a television presentation announcer/director, working on rotating early, daytime and late shifts.
In March 2023, she informed her employer that she had been diagnosed with type-2 diabetes, which caused fatigue. She was referred to occupational health and was subsequently signed off work for a period. In April 2023, she requested adjustments to her working pattern, referring to her condition as a disability.
An occupational health report in May 2023 advised that she should avoid early and late shifts and would require regular breaks. While the BBC removed her from the earliest and latest shifts, she remained scheduled to work a shift finishing at 00:30.
In June 2023, during one of these evening shifts, Ms Cunningham was 45 seconds late in initiating a live broadcast, which resulted in a disciplinary investigation. Although no formal sanction was imposed, she found the process distressing.
Why did Ms Cunningham complain?
Ms Cunningham brought employment tribunal claims for discrimination arising from disability and for failure to make reasonable adjustments.
Her discrimination claim related to the disciplinary process following the broadcast error, while her reasonable adjustments claim focused on the employer’s failure to remove her from all late shifts, particularly those finishing after midnight, despite occupational health advice.
What did the original ET decide?
The employment tribunal found that Ms Cunningham was disabled from June 2023. However, it dismissed both of her claims. It concluded that the BBC did not know, and could not reasonably have been expected to know, that she was disabled during the relevant period. It also found that her broadcast error was not materially caused by her disability and that the disciplinary process was justified. In addition, it determined there had been no failure to make reasonable adjustments.
What did the EAT say?
The EAT allowed the appeal in part, finding that the tribunal had adopted an incorrect approach to assessing the employer’s knowledge of disability.
It held that, by June 2023, the BBC had actual knowledge of Ms Cunningham’s condition and its effects, including fatigue. Although the employer may not have known that the effects were long-term, diabetes is widely recognised as a long-term condition and it would have been reasonable for the employer to seek clarification from occupational health.
The EAT also noted that the occupational health report referred to “reasonable adjustments”, and that Ms Cunningham herself had described her condition as a disability. Taken together, this meant that the employer knew, or ought reasonably to have known, that she was disabled.
In addition, the tribunal had failed properly to consider whether removing Ms Cunningham from all late shifts, including those finishing after midnight, would have been a reasonable adjustment. That issue was remitted to a fresh tribunal.
However, the EAT upheld the original finding that the disciplinary process was justified and that the disability did not play a material role in the broadcast error.
Why is this case important for employers?
This case highlights the importance of employers taking a proactive approach when considering whether an employee may be disabled.
It is not sufficient to rely solely on whether occupational health has explicitly confirmed that an employee is disabled. Where the employer is aware of a medical condition and its effects, and receives advice referring to reasonable adjustments, it may be expected to make further enquiries and reach its own conclusion.
The case also demonstrates the importance of properly considering the scope of reasonable adjustments. Employers should ensure they fully understand the disadvantages an employee faces and implement adjustments comprehensively, rather than partially.
Finally, it is a reminder that failing to investigate or clarify medical information can expose an employer to risk, even where steps have been taken to support the employee.
If you’d like advice on managing disability in the workplace, reasonable adjustments or any other employment law matter, our team at View HR is here to help. We work with employers to deal with issues early, keep things proportionate and stay on the right side of the law. Get in touch on hr@viewhr.co.uk or contact us to talk through how we can support you.
