In a recent case called Cunningham v BBC, Ms Cunningham worked for the BBC as a television presentation announcer and had type 2 diabetes causing exhaustion. The BBC adjusted her shift pattern but retained a late shift finishing at 00:30, despite occupational health advising against late shifts.
After a disciplinary process arising from a broadcast error on the late shift, she brought claims for discrimination arising from a disability (in relation to the broadcast error) and failure to make reasonable adjustments (in relation to the failure to remove her from all late shifts). The Employment Tribunal rejected both claims, finding the BBC did not know and could not reasonably have known she was disabled during the relevant period.
The Employment Appeal Tribunal (EAT), allowing Ms Cunningham’s appeal, held that:
- The BBC had constructive knowledge of Ms Cunningham’s disability at the time that they disciplined her. The BBC knew about the impairment, knew about the fatigue it caused, and had received occupational health advice referring expressly to ‘reasonable adjustments’. The BBC knew or ought to have known that Ms Cunningham was disabled. The fact that occupational health did not confirm their opinion that she was disabled until some months later did not affect this position.
- On reasonable adjustments, the Tribunal had not properly considered whether removing Ms Cunningham from the late shift finishing at 00:30 whilst it sought clarification from occupational health, would have been a reasonable adjustment for the BBC to make.
The case has been remitted to a fresh Tribunal.