Marguerite Andrea Cunningham v BBC

For discrimination arising from disability and reasonable-adjustments claims, an employer must assess knowledge by reference to the facts constituting disability: impairment, substantial and long-term adverse effect, and effect on normal day-to-day activities. The employer need not know the legal conclusion that the employee is disabled. It must make reasonable enquiries where the available information gives rise to uncertainty.

In a reasonable-adjustments claim, the tribunal must identify the PCP, the disadvantage it causes, and the proposed adjustment before assessing reasonableness. Where the alleged failure is an omission, time ordinarily runs from when the employer might reasonably have been expected to make the adjustment. A tribunal must address each materially proposed adjustment, including a stable rota removing a disabled employee from late shifts.

The Claimant, employed by the BBC as a television presentation announcer/director, developed type 2 diabetes and related exhaustion. The Employment Tribunal found that the impairment amounted to a disability from June 2023, but dismissed claims under sections 15, 20 and 21 of the Equality Act 2010.

The tribunal held that the BBC neither knew nor could reasonably have known of the disability, that it had made reasonable adjustments to the Claimant’s shift pattern, and that an error leading to disciplinary proceedings was not caused by disability-related exhaustion. The Claimant appealed on knowledge, reasonable adjustments and perversity grounds.

1. Ground 1 allowed. Knowledge is assessed by reference to the statutory elements of disability, not by whether the employer knows the employee is legally a disabled person. The BBC knew of the Claimant’s type 2 diabetes, fatigue or exhaustion, the need for treatment and management, and the need for adjustments to early and late shifts. Those facts, together with the occupational health material and the Claimant’s own reference to disability, required consideration of whether the impairment had a substantial and long-term adverse effect on normal day-to-day activities. It was reasonable to ask occupational health supplemental questions where the reports were unclear. The ET’s conclusion that there was nothing to suggest disability ignored its own findings and was an error of law. A finding was substituted that the BBC knew or ought reasonably to have known of the disability.
2. Ground 2 allowed. In a reasonable-adjustments claim the tribunal must identify the PCP, the non-disabled comparator, the substantial disadvantage and the proposed adjustment. The reasonableness of an adjustment cannot be assessed without considering the nature and extent of the disadvantage. The ET failed to consider whether removing the Claimant from the BBC Scotland Late shift, which finished at 00.30, and providing greater stability in daytime or early-evening shifts were reasonable adjustments. It also failed to assess the BBC’s decision to retain her on that late shift while questioning the occupational health advice.
3. The ET also appeared to approach time as running from the date on which the adjustment should first have been made. Where the failure is an omission or inadvertent, time ordinarily runs from the date when the employer might reasonably have been expected to make the adjustment.
4. Ground 3 dismissed. The finding that the broadcast error was not caused in any material sense by disability-related exhaustion was not perverse, irrational or certainly wrong. The ET was entitled to consider the evidence concerning the day of the error, including the absence of any indication of unfitness, the incident log, the Claimant’s earlier communications and the surrounding history. The ground was also academic because the Claimant had not appealed the finding that the disciplinary process was a proportionate means of achieving a legitimate aim.
5. The reasonable-adjustments claim under sections 20 and 21 was remitted to a fresh tribunal to determine whether the BBC Scotland Late shift placed the Claimant at a substantial disadvantage and, if so, whether the BBC took reasonable steps to avoid it.

• Employment Appeal Tribunal: The appeal from the Glasgow Employment Tribunal judgment dated 21 August 2024 was allowed on the knowledge and reasonable-adjustments grounds and dismissed on perversity. The reasonable-adjustments claim was remitted to a fresh tribunal.
• Glasgow Employment Tribunal: The Claimant’s claims under sections 15, 20 and 21 of the Equality Act 2010 were dismissed.