By Sara Meyer & Hilary Larter
|Published 13 July 2026
In this case, the Employment Appeal Tribunal (EAT) held that an employer who was aware that an employee had been diagnosed with type 2 diabetes could not avoid liability for an alleged failure to make reasonable adjustments on the basis that it did not know that the employee was disabled.
Ms Cunningham worked as a television presentation announcer/director for the BBC, on a rotating variable shift pattern which involved a mixture of early (from 5am), daytime, and late (finishing after midnight, or sometimes at 3am) shifts.
On 10 March 2023, Ms Cunningham emailed a manager stating that she had been diagnosed with type 2 diabetes and was suffering from fatigue. She had a period of sickness absence between 28 March and 25 April 2023. She was also referred to occupational health (OH).
On 4 April 2023, Ms Cunningham requested that she be moved to other duties or redeployed while she adjusted to her diabetes diagnosis, which she described as a disability. She highlighted that the lack of routine in her variable shift work meant that she had a disrupted sleep pattern and irregular meal breaks.
The BBC agreed to adjust Ms Cunningham's shifts, removing her from the early shift and the late shift that finished at 3am. However, she continued to work a late shift for BBC Scotland that finished at 12.30am (the BBC Scotland late shift) while the BBC sought further advice from OH on whether this shift also ought to be adjusted. On 14 August 2023, OH confirmed that Ms Cunningham should not work any shifts ending on or after midnight.
Prior to this, on the evening of 7 June 2023, Ms Cunningham made a broadcast error, which prompted the BBC to launch a disciplinary process. The outcome of the process was a decision that no formal action should be taken, but Ms Cunningham still found it upsetting. She brought claims in the employment tribunal asserting that the disciplinary process amounted to discrimination arising from her disability, and that the BBC had failed to make reasonable adjustments by not moving her off the BBC Scotland late shift while awaiting OH's response to its further questions.
The tribunal accepted that Ms Cunningham was disabled for the purposes of the Equality Act 2010 from June 2023, holding that the exhaustion caused by her type 2 diabetes had a substantial adverse effect on her ability to carry out normal day-to-day activities. The effect was long-term as it was likely to last at least 12 months.
However, the tribunal found that the BBC was not and could not reasonably have been aware of Ms Cunningham's disability during the relevant period from June to November 2023. Since liability for failure to make reasonable adjustments and discrimination arising from disability can only arise where an employer has actual or constructive knowledge of the employee's disability, neither claim could succeed. The tribunal also held that:
The EAT allowed part of Ms Cunningham's appeal, holding that the tribunal had erred in finding that the BBC was not and could not reasonably have been aware of her disability at the relevant time. The BBC had actual knowledge of Ms Cunningham's type 2 diabetes diagnosis and of the fatigue she was experiencing as a result. It was also aware that OH had recommended that Ms Cunningham should avoid working early and late shifts, and should have regular meal and rest breaks as reasonable adjustments, and that Ms Cunningham described her type 2 diabetes as a disability.
These known facts put the BBC on notice that Ms Cunningham was probably disabled and it would have been reasonable for the BBC to ask further questions of OH if it was in any doubt. The EAT therefore substituted a finding that the BBC could not rely in its defence on a lack of knowledge of Ms Cunningham's disability.
On reasonable adjustments, the EAT held that the tribunal had failed to engage with the question of whether it was reasonable for the BBC not to remove Ms Cunningham from the BBC Scotland late shift while it questioned the advice it had received from OH. The EAT remitted this question to a fresh tribunal for consideration.
The EAT dismissed Ms Cunningham's appeal on her discrimination arising from disability claim. It was not perverse for the tribunal to conclude that the error that triggered the disciplinary process was not caused by Ms Cunningham's disability. The appeal on this point was also academic, as Ms Cunningham had not appealed against the tribunal's conclusion that the disciplinary process was justified.
This case sounds an important note of caution for employers who are aware of information suggesting that an employee might have a disability. In such circumstances, employers would be expected to make further enquiries to confirm the position, and may be held to have constructive knowledge of disability if they fail to make appropriate enquiries.
It also serves as a reminder that employers should consider carefully any adjustments requested by an employee and/or recommended by OH, and seek clarification from OH if there is any uncertainty about the scope of its recommendations. If an employer decides not to implement proposed adjustments, it should keep a clear record of its reasons to refer back to if challenged.
