The Employment Appeal Tribunal's decision in the Cunningham v BBC case in May 2026 offers important guidance on employer knowledge, reasonable adjustments and disability-related disciplinary action. The case serves as a useful reminder of the proactive approach employers are expected to take, amid ongoing implementation of the Employment Rights Act 2025, and its enhanced focus on employee protections.
In this article we explore the background to the case, including the decisions of the Employment Tribunal and Employment Appeals Tribunal, and provide key lessons for employments to take away.
The claimant in this case, Cunningham, was diagnosed with type 2 diabetes. She had worked for the BBC since 1987 and was employed as a broadcaster. Her diabetes caused her to experience symptoms including fatigue, and in March 2023, she informed her manager of her diagnosis via email. She was referred to occupational health, and in early April, requested an accommodation. The BBC agreed to adjust her shifts and she was removed from some that ended very late, or started very early.
Whilst the BBC was considering and questioning the occupational health advice received, in which the BBC were advised to make shift adjustments for the claimant, the claimant continued to do the BBC Scotland late shift, which finished at half past midnight.
On 5 June 2023, she asked to be taken off this shift as it involved more than six hours without a break. On 7 June 2023, the claimant made a broadcast error while live on air, and subsequent disciplinary proceedings were commenced, which the claimant found upsetting. There was no formal action taken against her.
On 23 June 2023, she informed the BBC that she was finding the shift difficult regarding the impact on her health.
The claimant brought two claims:
Failure to make reasonable adjustments, regarding the requirement to work on a late shift that ended at half past midnight.
Discrimination arising from disability, in light of the commencement of disciplinary proceedings that was caused by her disability-related fatigue.
Occupational Health advice in August 2023 confirmed that the claimant should not be required to work on any shifts that ended on or after midnight, and this included the late shift.
The Employment Tribunal dismissed both the failure to make reasonable adjustments and discrimination arising from disability claims. The Employment Tribunal found that the BBC was not aware of the claimant’s disability at the relevant time, namely when she made the broadcast error and when they commenced disciplinary proceedings as a result.
However, the Employment Appeals Tribunal found that the BBC did have knowledge of the disability at the relevant time. While it agreed that occupational health had only advised the claimant was disabled in December 2023, the Employment Appeals Tribunal held that the BBC knew, or ought reasonably to have known she was disabled far earlier than this, in June 2023.
The Employment Tribunal had therefore failed by not taking into account the actual knowledge, along with the fact that it was clearly reasonable for the BBC to ask additional questions about the disability, i.e. the ‘ought to have known’ element.
They also found that the Employment Tribunal had not properly considered whether excusing the claimant from the late shift would have been a reasonable adjustment. The Employment Tribunal should have addressed the reasonableness of the BBC’s decision to retain the claimant on that shift while it considered the occupational health advice it had received.
Perhaps unusually, the Employment Appeals Tribunal referred the reasonable adjustments point to a new tribunal, rather than the original Employment Tribunal, because it was concerned about the flawed approach in the original Employment Tribunal’s findings and that this might undermine confidence.
Employers should be careful not to get caught out on the ‘ought to have known’ element regarding disability. It's not enough that employers did not know about a disability at the relevant time.
The tribunals will go further than that, as the Employment Appeals Tribunal demonstrated here by stating that it was reasonable for the BBC to have asked questions related to Cunningham’s disability, and perhaps implying that the BBC should have done so. Employers should be alive to this fact; unfortunately, they cannot merely wait for an occupational health report, or otherwise, to explicitly state that an employee is disabled. As summarised by the Employment Appeals Tribunal:
"5.15 - An employer 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. This is an objective assessment. When making inquiries about disability, employers should consider issues of dignity and privacy and ensure that personal information is dealt with confidentially."
Furthermore, employers should bear in mind the unintended consequences of disciplinary proceedings, even if no formal action is taken. Employers need to be satisfied that disciplinary proceedings are required, and that they are not being undertaken as a result of something arising from a disability, as in Cunningham, where it was a result of the disability-related fatigue, as this could amount to discrimination.
For further information, please contact our employment team.
