The recent case of Cunningham v British Broadcasting Corporation reminds employers of the need to carefully consider whether employees are (or may be) disabled – and, in appropriate circumstances, to make necessary enquiries and reasonable adjustments.
Background to the case
Marguerite Cunningham, the Claimant, had been employed by the BBC since 1987. Marguerite worked as a television presentation announcer/director for BBC Scotland – shift times varied and included some at unsociable hours. In March 2023, Marguerite told a manager of her diagnosis with type 2 diabetes and consequential fatigue.
A referral to Occupational Health followed and Marguerite was signed off work from late March until late April. In early April, she referred to her diabetes as a disability and requested changes to her working pattern. Some advice was received – for example, in May, Occupational Health advised that she should remain off early and late shifts and referred to some changes as ‘reasonable adjustments’. Some adjustments were made although she continued working a particular late shift ending at half past midnight. In August 2023 Occupational Health confirmed this was a ‘late’ shift and advised she should not work shifts ending on or after midnight.
In the interim (early June 2023), however, Marguerite made a broadcast error one evening during a late shift (45 seconds late starting a 60 second live news broadcast). This led to a formal disciplinary process. Although the BBC ultimately decided after a disciplinary investigation that no formal action should be taken against her, Marguerite still found the process upsetting.
The Claims
Claims were then brought by Marguerite for discrimination arising in consequence of a disability (regarding the disciplinary process) and a failure to make reasonable adjustments (relating to the late shift). Significantly, in their response to the claim, the BBC did not admit that Marguerite was disabled.
The Initial Finding
The Employment Tribunal (ET) initially found in favour of the BBC – including finding that the BBC was not and could not reasonably have been aware that the claimant was disabled at the relevant time.
The Employment Appeal Tribunal Judgment
The Employment Appeal Tribunal (EAT) disagreed with the ET. Amongst other things, the EAT referred to the actual knowledge of the BBC ‘together with it being clearly reasonable for the BBC to ask supplemental questions about disability when obtaining OH reports…’ In this case, for example, the BBC knew of the diabetes, knew of the fatigue/exhaustion and need for appropriate management, knew that the employee was seeking an accommodation for a disability and had even received an occupational health report referring to ‘reasonable adjustments’. Such factors were considered to have put the BBC on notice that the employee was probably disabled and that further enquiries were necessary.
Ultimately, the EAT concluded in this regard that ‘(a)ny reasonable tribunal properly directing itself would find that the BBC knew or ought to have known that the Claimant was disabled at the relevant time and that the BBC was not able to make out a knowledge defence to the disability claims.’ [emphasis added] The fact that the occupational health advice did not actually confirm their view that Marguerite was disabled until later did not affect this finding.
Regarding reasonable adjustments, the EAT again disagreed with the ET. The EAT found that the ET failed to engage with the question of whether it was reasonable for the BBC to adjust some but not all late shifts whilst it questioned occupational health advice – and that in assessing reasonable adjustments it was necessary to consider the failure to adjust the late shift and make findings about whether that was reasonable in light of occupational advice about late shifts. The EAT also observed that the BBC knew that the late shift caused a substantial disadvantage from Marguerite and the occupational health reports. Ultimately that aspect of the matter was remitted to be reconsidered by a fresh Tribunal.
Food for thought
The case serves as a reminder to employers of the need to make adequate enquiries when employees bring health issues to their attention and ask sensible questions (whilst bearing in mind issues such as dignity, privacy and confidentiality). For example, even when occupational health advice does not explicitly state that an employee is disabled, it may well be appropriate and reasonable to ask further questions to assist with determining this point. Failure to do so may lead to an employer being deemed to have knowledge of an employee’s disability as they knew – or ought to have known – that the employee was disabled.
Further, if employers know (or could reasonably be expected/ought to know) that an employee is disabled and that the employee is (or is likely to be) placed at a substantial disadvantage then thought will need to turn to reasonable adjustments.
Ultimately, when health concerns are raised by employees, employers will need to navigate issues like these and other matters sensitively and thoughtfully. Taking medical advice at an early stage will be helpful. Similarly, legal guidance will be valuable too. If you require advice on these or other issues please do contact a member of our Employment Team.