EAT decision on disability and reasonable adjustments following disciplinary for workplace errors. Warning to employers not to ignore constructive knowledge of disability, and to take care with Occupational Health advice.
In Cunningham v British Broadcasting Corporation, the Employment Appeal Tribunal has allowed a claimant’s appeal, finding that the original Tribunal erred in concluding that the BBC was not aware of the disability, and also disagreeing as to whether there had been adequate evaluation of the need for adjustments. The case has been remitted to a fresh Tribunal for reconsideration of these issues, along with the EAT’s substituted finding that the BBC did have knowledge of the claimant’s disability at the relevant time. A claim regarding the employer’s approach to the disciplinary process was dismissed.
Background facts
The claimant was a broadcaster/director and worked on a rota, including shifts with early starts and late finishes. She informed her manager in March 2023 of a diagnosis of type 2 diabetes, and reported fatigue. During sick leave in March and April 2023 the claimant referred in correspondence to her condition as a disability, and raised concerns about lack of routine, disruption to sleep, and irregular meal breaks. Occupational Health (OH) advised that the claimant’s health was likely to improve with appropriate treatment and an early resolution of work-related circumstances.
The claimant was removed, with her agreement, from some shifts, but continued to work a ‘late’ shift for BBC Scotland, which ended at 12:30am, and involved a 6 hour period without a break. Despite the claimant raising concerns about the effect of these shifts on her health, this working pattern continued until a further period of sick leave in August 2023.
The BBC sought OH advice, including inquiring whether the BBC Scotland late shift should be reconsidered. OH’s response on 14 August 2023 referred to reasonable adjustments and advised that the claimant should not work shifts ending on or after midnight.
In early June 2023 the claimant made an error during a live broadcast, which led to a formal disciplinary investigation that ultimately decided that no formal action should be taken. However, the claimant found the disciplinary process upsetting.
The Claim
In November 2023 the claimant brought an employment tribunal (ET) claim for discrimination arising from disability in relation to the disciplinary process, and failure to make reasonable adjustments, in relation to the late shift. In its response to the claim the BBC did not concede that it knew the claimant was disabled at the relevant time and queried whether the claimant’s symptoms met the statutory test, i.e. whether the impairment had a substantial and long-term adverse effect on the claimant’s ability to carry out day to day activities.
First Tribunal’s Decision
In dismissing the claim, the ET found that the BBC was not and could not reasonably have been aware of the claimant’s disability at the relevant time (which was held to start with the date of the claimant’s workplace error, i.e. June 2023 and continue until November 2023).
The ET held that there was no failure to make reasonable adjustments, because the BBC had made reasonable adjustments by altering the claimant’s shift pattern. It held that further adjustments sought by the claimant were not reasonable and that her claim was brought out of time. The ET also found no s15 discrimination, (i.e. discrimination by something arising as a consequence of disability), because the error by the claimant in June 2023 was not caused by the disability/exhaustion at the relevant time. Even if this were not the case, the disciplinary process could be justified because the BBC had a legitimate aim, which was to investigate the error, and it had done so in a proportionate manner.
Appeal
Knowledge of disability
The EAT noted that, when assessing constructive knowledge of disability, information from the employee about their disability, and the cause of any absence or disability-related symptoms can be important because, if the cause is known, this may assist in considering whether the impairment may last more than 12 months.
The EAT quoted from the Statutory Code of Practice, which provides that the employer ‘must show that they could not reasonably have been expected to know’ about the disability…and they must ‘do all they can reasonably be expected to do to find out if a worker has a disability. What is reasonable will depend on the circumstances’.
Importantly, the EAT held that the Tribunal’s assessment should have included both what the BBC actually knew at the time, and what it would have discovered had it made reasonable enquiries about the type 2 diabetes, including asking OH about any aspects of the claimant’s condition which were unclear from OH reports, rather than seeking to rely on any lack of clarity. The BBC was found to have known in June 2023 of the claimant’s fatigue/exhaustion.
The EAT had little sympathy with the argument that the BBC did not know whether the claimant’s impairment was likely to last for at least 12 months, noting that ‘diabetes is known to be a long-term condition’ and if the BBC was not clear that diabetes was a long-term condition with long-term adverse effects, it was reasonable for the BBC to have asked OH about this part of the definition of disability. Had the BBC done so, the EAT found that the OH report would inevitably have reported that she had a long-term condition.
Reasonable Adjustments
The EAT found that the Tribunal erred in failing to make findings about the extent of the disadvantage suffered by the claimant in relation to shift patterns. Although the BBC made substantial adjustments to the claimant’s rota, reducing the number of late shifts, there was an apparent misunderstanding of the OH report.
The BBC thought that as the claimant had initially agreed to do one of the BBC Scotland late shifts, when OH advised that the current adjustments were assisting and should be continued, that meant that the BBC Scotland late shift was not a late shift for the purpose of adjustments.
The EAT found that this was not a ‘fair reading’ of the OH advice, and that the ET should have made a finding about whether it was reasonable for the BBC to have failed to adjust this shift in light of OH advice.
What to take away
This case emphasizes the need for employers to take into account all of the information available to them when considering whether an employee is disabled. Employers should also be wary where the employee is appearing to ‘manage’ in a situation, in spite of information or recommendations that such situation is not appropriate for them. In this case, the adjustments did not go quite far enough, and this is something employers should be alert to.
It also reminds us of the importance of engaging on a case-by-case basis with OH, and asking supplemental questions if there is a lack of clarity in recommendations or conclusions. Employers should consider with care whether they understand the proposed adjustments and can justify any departure from what OH has recommended.
Comment
In the workplace, the duty is on the employer to consider reasonable adjustments, and there is no requirement for the employee to make suggestions at the time that the duty arises. Therefore, there should be a dialogue between the employer and employee, focused on the disadvantage being experienced by the employee, and what steps might be taken to reduce or remove that disadvantage.
In our experience, the latter part of the above test is often missed – would the requested adjustment mitigate or prevent the substantial disadvantage, or on the available evidence, would it be ineffective. This should be a key part of all employer’s considerations and can be a legitimate reason for refusing a requested adjustment. An employer is entitled to consider whether a proposed adjustment would in fact alleviate the disadvantage and may also consider the effect on other employees when considering whether that adjustment is reasonable.
For further guidance on how employers should consider reasonable adjustments, please get in touch with one of our expert employment law solicitors.