Cunningham v British Broadcasting Corporation [2026] EAT 92

In this case, the Employment Appeal Tribunal (“EAT”) overturned the Employment Tribunal (“ET”)’s decision that the Respondent was not aware of the Claimant’s disability where it had received information about the employee’s condition but had failed to make further enquiries.

The Claimant had been employed by the Respondent since 1987 and worked an eight-week rota of early, day and late shifts. In March 2023, she informed her manager that she had type 2 diabetes diagnosis and suffered from fatigue. She was referred to occupational health and was signed off sick from 28 March to 25 April 2023. Occupational health recommended she avoid early and late shifts, and the Respondent therefore adjusted her shift pattern. However, she remained on one shift, which finished at 12.30am. Occupational health later confirmed, in August 2023, that she should not work any shifts ending on or after midnight.

On 7 June 2023, while working an evening shift, the Claimant made a live broadcast error and disciplinary proceedings were commenced, although no formal action was ultimately taken. She subsequently brought claims for failure to make reasonable adjustments and discrimination arising from disability. The ET dismissed both claims, finding that the Respondent was not, and could not reasonably have been, aware of her disability during the relevant period of June to November 2023.

The Claimant subsequently appealed and the EAT allowed an appeal on two grounds. On the first ground (knowledge of disability), it concluded that, by June 2023, the Respondent had actual knowledge of her type 2 diabetes, fatigue, the need for treatment and management of her condition, and that the Claimant had herself described the condition as a disability. Taken together, these matters put the Respondent on notice and made further enquiry clearly reasonable. The EAT concluded that the ET had made an error of law: any reasonable tribunal properly directing itself would have found that the Respondent knew or ought to have known that she was disabled at the relevant time. The EAT therefore substituted a finding that the Respondent had the requisite knowledge.

On the second ground (reasonable adjustments), the EAT concluded that the ET had failed to address the reasonableness of keeping the Claimant on the late shift ending after midnight while the Respondent questioned its occupational health advice. Further, the ET had not properly considered whether it would have been a reasonable adjustment to remove the Claimant from that shift and provide a more stable day and early evening rota. The reasonable adjustments claim was sent to a fresh ET to consider.

This case reminds employers that the receipt of meaningful information about an employee’s health condition, including a self-identification of disability, may be sufficient to put them on notice, even where a formal diagnosis has not been provided. Employers should ensure that when an employee raises health concerns, appropriate enquiries are made and that occupational health advice is followed promptly and consistently. Where there is any uncertainty, further enquiries should be made.

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