While Downing Street may be busy right now, so too are the employment tribunals. We are seeing quite a few interesting cases, including one which highlighted the need for employers to be pro-active in seeking knowledge where an employee may have a disability.
The case of Cunnigham v BBC [2026] EAT 92, involved an employee who had been diagnosed with type 2 diabetes causing her significant tiredness. She was an announcer for BBC Scotland and worked shift patterns. Ater her diagnosis she continued to work a late shift finishing after midnight, during which on one occasion she made an error. This led to a disciplinary and ultimately to her taking sick leave.
Although Occupational Health (OH) recommended the employee no longer work the late shift, it didn’t at the time confirm she was disabled and her shifts remained unaltered. Eventually the employee sued her employer for disability discrimination and failure to make reasonable adjustments.
Was the employee disabled?
While the employer argued that the employee was not disabled, the EAT held she was.
It said that the employee had disclosed her diabetes diagnosis (which is generally considered a long term condition) and work-related fatigue and described the condition as a disability (although that doesn’t necessarily mean it is). In addition, the fact that OH advised reasonable adjustments, meant the employer either knew or should have known the employee had or may have a disability. Waiting for OH to formally label an employee as disabled (which can take months or more) or to rely on ambiguities in a OH report to justify inaction, was no defence.
Obviously each situation needs to be looked at on its facts, however this case shows how important it is for employers not to get caught out by what they “should have known”. The courts expect employers to do all they reasonably can to find out if a worker has a disability and if they choose to depart from OH recommendations for reasonable adjustments, should have justifiable reasons as to why.
Click here for the full judgment
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