Employers can find themselves on a tightrope when it comes to employees’ health; wanting to demonstrate care and concern for an employee’s wellbeing, whilst also not overstepping and prying into confidential health issues. The provisions of the Equality Act 2010 can be a blunt tool when dealing with these nuances and so we often must fall back on case law and look to others for how to do it well or how not to do it!  This EAT case of Cunningham v BBC, falls in the latter category. 

Learning points

• Tribunals will apply a broad interpretation of actual or constructive knowledge of a disability – employers should do the same
• Shift patterns may be a key part of the reasonable adjustment landscape 

Legal reminders

• Under the Equality Act 2010, a disability is a physical or mental impairment that has a substantial and long-term adverse effect on the employee’s ability to carry out normal day-to-day activities.
• It is unlawful for an employer to discriminate against an employee because of their disability.
• It is further unlawful for an employer to treat an employee less favourably because of something arising out of their disability unless the employer can demonstrate that their treatment was a proportionate way of achieving a legitimate aim.
• An employer is under a duty to make reasonable adjustments for disabled employees to lessen the disadvantage of the disability.
• An employer must have actual or constructive knowledge of the disability.

Case summary

Ms Cunningham worked for the BBC as a television announcer/director for BBC Scotland. She was part of a team that worked on an eight-week rota with varying shift patterns, including early, day and late shifts. In March 2023, she informed the BBC that she had been diagnosed with type 2 diabetes and was experiencing fatigue. Occupational health advice recommended adjustments, including avoiding early and late shifts and ensuring regular meals and rest breaks.

The BBC made some changes to her rota, including removing her from certain early and late shifts. However, she continued to work a BBC Scotland late shift which finished at around 12.30am. In June 2023, she made a broadcast error, which led to a disciplinary investigation, although no formal disciplinary action was ultimately taken. It was this disciplinary investigation that triggered Ms Cunningham’s claim. 

She accused the BBC of discrimination arising from a disability – her error had occurred, she argued, because of her exhaustion, which was a result of her diabetes. In addition, the BBC had failed to make reasonable adjustments as they had not removed her from all late shifts in accordance with the OH advice. She was still required to work the BBC Scotland late shift. 

The BBC’s defence had two strands. First, they argued that Type 2 diabetes is not automatically a disability and that the OH reports were not conclusive on that point. Second, that they had no actual or constructive knowledge of the disability and so could not have discriminated against Ms Cunningham and were not under any duty to make reasonable adjustments.

The employment tribunal rejected Ms Cunningham’s case, agreeing that the BBC had no actual or constructive knowledge of the disability and hence could not have discriminated against her nor was under a duty to make reasonable adjustments. At a preliminary hearing, however, it was agreed that Ms Cunningham’s Type 2 diabetes was a disability. 

EAT decision  

The EAT rejected the tribunal’s decision. 

• It found that the BBC knew from June 2023 that Ms Cunningham had an impairment, they knew it was likely to last for 12 months or for life and that it would have a substantial long-term impact on her ability to carry out day-to-day activities. The gaps in their knowledge could easily have been closed had they asked supplemental questions of the OH practitioner when they received their reports.
• It further concluded that the BBC should have considered removing Ms Cunningham from the BBC Scotland late shift and that this was a reasonable adjustment. 

Learning points

• Knowledge may come from many different reports or sources, not just a formal disclosure 

In this case, the BBC knew of Ms Cunningham’s diabetes, they had been told she’d been suffering fatigue and that she was seeking reasonable adjustments to her working pattern. The EAT ruled that this clearly demonstrated knowledge of the disability. Ensure you have ‘joined up thinking’ when it comes to potential disabled employees and that details, reports and meetings are logged. Employers should avoid asking whether they have been given a definitive statement or whether there is any doubt about a disability and instead ask whether they have enough information to consider that disability is a possibility and pursue that possibility through conversations with the employee and OH.

• Don’t blame unclear occupational health reports

If an OH report is not clear either on the disability or on reasonable adjustments, then seek clarification until you understand better. Illnesses, whether disabilities or not, are rarely static and so the impact of the condition on the employee and their ability to continue with their role will change and employers must keep up to date with the changes. If the advice appears contradictory, then follow it up and query this. 

• Changing shift patterns may be a reasonable adjustment, but be specific 

It is highly likely that for some disabilities, irregular shift patterns or those which require early starts or late finishes exacerbate the disability and its symptoms. Considering changes to shift patterns is part of the reasonable adjustment duty; however, any adjustment to a shift pattern should be reasonable in all the circumstances. Is it reasonable if the employee continues to be paid 100% and is only working 30% of their contractual hours? It may not be the case, however, what the employer must do is address what is reasonable in the circumstances and do this with input and assistance from OH and the employee concerned. The employer should not make any assumptions and act accordingly. In this case, because Mrs Cunningham had initially agreed to BBC Scotland late shifts, the BBC assumed she was happy to continue working late shifts without checking whether this was still the case in light of later OH reports about the problems of late shift working. 

• Review arrangements and keep asking questions 

Ensure effective follow-up actions when any reasonable adjustments are made. Circumstances may change, as may the health of the employee, so it’s key that reviews are diarised and actioned. Again, assuming all is well just because you have not had a formal request is not good practice either for the disabled employee or potentially for their colleagues who are covering shifts or meeting other requirements of the reasonable adjustments. 

Parting comment

This case is not a radical departure from established principles, but it is a helpful warning!  A cautious, proactive and informed approach to any potential disability issue is crucial. It’s crucial when understanding a disability and crucial when assessing reasonable adjustments.

For any specific advice on this or any other matter, please contact our team.