The recent EAT (Employment Appeal Tribunal) decision in Cunningham v British Broadcasting Corporation serves as an important reminder for employers regarding their duties under the Equality Act 2010. The ruling highlights two major legal pitfalls: the danger of relying strictly on formal occupational health confirmations of a disability, and the necessity of considering temporary adjustments while awaiting medical clarity.
The background
Ms Cunningham worked as a television presentation announcer for the BBC. She has Type 2 diabetes, a condition that caused her severe exhaustion. Recognising her difficulties, the BBC adjusted her overall shift pattern. However, they retained a late-night shift that finished at 12:30am, despite receiving explicit advice from occupational health advising against late shifts.
Following a broadcast error that occurred during one of these late-night shifts, the BBC initiated a disciplinary process. In response, Ms Cunningham brought two distinct legal claims:
Discrimination arising from disability: Arguing that the broadcast error (and subsequent discipline) was linked to the fatigue caused by her condition.
Failure to make reasonable adjustments: Arguing that the BBC failed in its duty by refusing to remove her from all late shifts.
The Decision
The initial ET (Employment Tribunal) rejected both claims. It ruled in favour of the BBC, finding that management did not know, and could not reasonably have been expected to know, that Ms Cunningham met the legal definition of disabled during the relevant period.
The EAT (Employment Appeal Tribunal) allowed Ms Cunningham’s appeal, overturning the ETs decision, and remitted the case to a fresh tribunal.
The EAT focused on two key legal principles.
Constructive knowledge of disability
The EAT held that the BBC possessed "constructive knowledge" of Ms Cunningham’s disability by the time they disciplined her. The law does not allow employers to simply wait for a formal medical report to explicitly state that an employee is legally disabled under the Equality Act 2010.
The EAT noted that the BBC already knew about the underlying physical impairment, knew about the severe fatigue it caused, and had received occupational health advice that expressly referenced the need for "reasonable adjustments." The fact that occupational health did not formally recognise her status as a disabled person until months later did not change what the BBC ought to have deduced from the facts already in front of them.
Proactive reasonable adjustments
Regarding the second claim, the EAT found that the ET failed to properly assess the scope of reasonable adjustments. Specifically, they did not consider whether removing Ms Cunningham from the 12:30am late shift on a temporary basis - while the BBC sought further clarification from occupational health - would have been a reasonable step to take. Employers are expected to act protectively when a clear workplace risk to health is identified.
Key takeaways
The Cunningham case provides vital compliance lessons for managing employee health conditions:
Do not wait for a label: If you know an employee has a long-term physical or mental impairment that impacts their daily work activities, you may already have constructive knowledge of a disability.
Act on Occupational Health advice immediately: If occupational health recommends avoiding certain duties or shifts, ignoring that advice to wait for further reports exposes the business to severe legal risk.
Implement interim measures: If a medical condition is causing performance issues, consider implementing temporary adjustments (such as shift removals) while you gather more comprehensive medical evidence.
How we can help
Our team of experienced Employment advisers can provide advice and guidance on how best to manage health issues in the workplace including exploring reasonable adjustments – what is ‘reasonable’ for one business may not be for another. Contact us on the Employment Service Helpline 0370 840 0234 for tailored advice.
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