EAT overrules Tribunal on disability case – judgment provides helpful warning to employers in the transport and logistics sector

Employers in the transport and logistics sector should take heed of a recent EAT decision, Cunningham v British Broadcasting Corporation, in which a claimant’s appeal was allowed on two grounds, finding that the original Tribunal erred in concluding that the BBC was not aware of the employee’s disability, and also disagreeing as to whether there had been adequate evaluation of the need for adjustments.

This case is an excellent reminder of where information held by an employer can result in a finding that they had ‘constructive knowledge’ of an employee’s disability, essentially being sign-posted to the fact that further enquires should have taken place.  Whilst the case related to the BBC, it is common in the transport and logistics sector for employers to have limited contact with some of their employees than might otherwise occur in different sectors.  For example, a night-shift driver might not see their manager regularly, or similarly a driver who is away for days at a time, hence the need to consider the learnings from this case carefully given the heightened risk of an employer receiving information sporadically or outside of the typical formal channels.

In Cunningham, 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.  One can foresee a similar issue arising in the transport and logistics sector.

OH’s response to a request for advice from the BBC, including inquiring whether the BBC Scotland late shift should be reconsidered, referred to reasonable adjustments and advised that the claimant should not work shifts ending on or after midnight.

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 and commenced proceedings in the employment tribunal (ET) for discrimination arising from disability in relation to the disciplinary process, and failure to make reasonable adjustments, in relation to the late shift.

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.

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 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.

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.

Appeal - reasonable adjustments

The EAT also 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.

Key take aways

This case has a number of similarities to matters which arise within the transport and logistics sector. As with the BBC, many operators are large employers and have significant resources available to them, such as OH providers.  It is vitally important to apply sufficient thought to the information received from employees and other guidance such as OH reports, and consider whether an employee might be disabled, thus triggering the additional protections contained within the Equality Act 2010.

Employers should 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’ a situation, in spite of information or recommendations that such a situation is not appropriate for them (i.e. a driver who is perhaps keen to continue working night shifts because of enhancements to their pay, but who might have medical reasons why it ought to be avoided).

Dialogue with your employees is important, which, as noted, above can sometimes be challenging in the sector.  However that is no excuse; employers must be proactive in considering ways to alleviate disadvantage, and not simply wait for an employee to request adjustments.

Engaging with OH, and asking supplemental questions if there is a lack of clarity in recommendations or conclusions, is necessary. Employers should consider with care whether they understand the proposed adjustments and can justify any departure from what OH has recommended. This can be tricky in a fast-paced environment, where there may be limited scope to alter working patterns, especially where it may be the case that not all line managers have an appropriate ‘radar’ to be able to spot where further enquiries might be necessary.  Training of your workforce is vital.