In Cunningham v British Broadcasting Corporation [2026] EAT 92, the EAT held that an employer cannot rely on the absence of a clear occupational health label to deny knowledge of disability where the wider information points the other way.
This overturned the ET's finding that the BBC did not know, and could not reasonably have been expected to know, that the claimant was disabled. The claimant had disclosed type 2 diabetes and work-related fatigue, described the condition as a disability, and received occupational health advice referring to reasonable adjustments.
The EAT found that, if there was uncertainty about whether the condition was long-term, the BBC should have sought clarification from occupational health. It substituted a finding that the BBC had the required constructive knowledge of disability.
The EAT also held that the tribunal had failed to properly consider whether removing a shift finishing after midnight was a reasonable adjustment, and that the tribunal had erred in its approach to time limits. Where the alleged breach is an omission, the relevant date is assessed by reference to when the employer could reasonably have been expected to take the step in question, rather than by treating time as running automatically from the earliest point at which the adjustment might have been made. Both of these issues will now be reconsidered by a fresh tribunal.
