EAT overturns tribunal finding in diabetes case

Background

In the case of Cunningham v British Broadcasting Corporation, the claimant worked shifts that included early starts and late finishes. In March 2023, she informed the BBC that she had been diagnosed with type 2 diabetes and was experiencing fatigue.

Occupational health recommended that she should avoid early and late shifts and be provided with regular meal and rest breaks.

Although the BBC removed her from some shifts, she continued to work a shift ending at 12.30am.

Following an error during a live news broadcast, the claimant was subjected to a disciplinary investigation. She subsequently brought claims for discrimination arising from disability and failure to make reasonable adjustments.

The employment tribunal accepted that she was disabled but found that the BBC neither knew nor could reasonably have been expected to know this during the relevant period. It dismissed her claims.

EAT decision

The EAT allowed the appeal in part.

It held that the tribunal had erred in finding that the BBC lacked knowledge of the claimant's disability. The BBC knew about her diabetes and the fatigue it was causing. If it was unclear whether the condition was long term, it would have been reasonable to seek clarification from occupational health. Had it done so, it would have learned that diabetes is a long-term condition.

The EAT also noted that occupational health had referred to the need for reasonable adjustments and that the claimant herself had described her condition as a disability. In those circumstances, the BBC knew or ought reasonably to have known that she was disabled. The EAT therefore substituted a finding that the BBC had the requisite knowledge.

The EAT also found that the tribunal had failed properly to consider whether it would have been a reasonable adjustment to remove the claimant from the shift finishing after midnight. The reasonable adjustments claim was remitted to a fresh tribunal.

However, the claimant's challenge to the tribunal's finding that her disability did not materially contribute to the broadcasting error was unsuccessful. Her discrimination arising from disability claim therefore remained dismissed.

Learning points for employers

This decision demonstrates that employers cannot ignore information already available to them when considering whether an employee may be disabled. Where there is uncertainty, further enquiries should be made, particularly where occupational health is involved.

The case also highlights the need to consider occupational health recommendations carefully. Employers should ensure they understand the adjustments being proposed and have clear reasons for departing from any recommendations. Failure to implement adjustments fully may increase the risk of a reasonable adjustments claim.

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For more information or advice, please get in touch with Matt Verrier in our Employment team.