Marguerite Andrea Cunningham v BBC [2026] EAT 92

[2026] EAT 92Case No EA-2024-SCO-000088-LP
EMPLOYMENT APPEAL TRIBUNAL
52 Melville Street
Venue Edinburgh, EH3 7HFDate 16 June 2026
Before
ANDREW BURNS KCDEPUTY JUDGE OF THE HIGH COURT
Between
MARGUERITE ANDREA CUNNINGHAMAppellant- and –
Between
BRITISH BROADCASTING CORPORATIONRespondent
The Appellant in person for in personRajiv Bhatt (instructed by BBC Legal Services) for RespondentHearing Hearing date: 7 May 2026
JUDGMENT
[1]This is an appeal from the judgment of the employment tribunal sitting at Glasgow (“the ET”) dated 21 August 2024 dismissing the Appellant’s disability discrimination claims for a failure to make reasonable adjustments and discrimination arising from her disability. I refer to the parties as they were below.

Factual Background

[2]The Claimant was employed by the BBC since 1987 and worked as a television presentation announcer/director for BBC Scotland. The Claimant’s job involved controlling broadcast content such as programmes, trailers and making continuity announcements between television programmes. The team at BBC Scotland worked on an eight-week rota, each normally taking some of the shifts on a variable basis – some early (from 5am), some late (after midnight or sometimes until 3am) and some during the day.[3]On 10 March 2023 the Claimant emailed a manager (referred to as “B” in the ET Judgment) informing her of her diagnosis of type 2 diabetes and fatigue. This impairment was found by the ET at a preliminary hearing to constitute a disability as from June 2023. The Claimant was referred to occupational health (“OH”) and was signed off as unfit for work between 28 March and 25 April 2023. OH reported that the Claimant’s health was likely to improve with appropriate treatment and an early resolution of work-related circumstances. The Claimant returned to work on the expiry of her full sick pay.[4]On 4 April 2023 the Claimant requested an accommodation while she was adjusting to the “diagnosis of Type 2 diabetes which is, I’m sure you are aware, classed as a disability?” She suggested other duties or redeployment. The Claimant said the main problems posed by her shift work were “the lack of routine, disruption to my sleep pattern, and irregular meal breaks”.[5]The BBC agreed for the Claimant’s work to be adjusted. The Claimant was removed from the early shift and the BBC One Late shift (which sometimes finished at 3am) but she agreed to continue working the BBC Scotland Late shift, which finished at half past midnight. This adjustment remained in place until the Claimant’s sickness absence in August 2023. On 14 August 2023 OH responded to the BBC’s questions about whether the BBC Scotland Late shift needed to be part of the adjustments. OH confirmed that this was indeed a ‘late’ shift and advised that the Claimant should not work shifts ending on or after midnight.[6]However prior to this, when working in the evening of 7 June 2023, the Claimant made a broadcast error by not going ‘into circuit’ on time. She was 45 seconds late starting a 60 second live news broadcast. That error led to a formal disciplinary process. After a disciplinary investigation in August 2023, the BBC decided that no formal action should be taken against the Claimant. The Claimant still found that process upsetting.

The Claim

[7]On 14 November 2023 the Claimant brought a claim in relation to the disciplinary process for discrimination arising in consequence of a disability contrary to section 15 of the Equality Act 2010 (“EqA”). She also claimed a failure to make reasonable adjustments contrary to sections 20 and 21 EqA in relation to the BBC Scotland Late shift.[8]In its Grounds of Resistance dated 15 December 2023 the BBC did not admit that the Claimant was disabled. It pleaded that “a diagnosis of Type II diabetes does not automatically amount to a disability, and the Claimant has not properly particularised the frequency and symptoms associated with her high glucose levels, which the two latter OH reports confirm to be improving, nor has the Claimant explained in what way this amounts to an impairment that has a substantial and long-term negative effect on her day-to-day activities, in order to satisfy the definition of disability under section 6 of the Equality Act 2010.” That appears to reflect the approach in Metroline Travel v Stoute [2015] IRLR 465 which held that type 2 diabetes which can be managed by simple dietary measures is not per se a disability. The ET listed a preliminary hearing to assess whether the diabetes impairment was a disability.[9]In a judgment of EJ McManus dated 29 April 2024 the ET found at para 137 that “the exhaustion caused by the Claimant’s impairment of Type 2 Diabetes had a substantial adverse effect on her ability to carry out her normal day-to-day activities.” The ET initially held (at para 139) that the adverse effect was not long-term because it had not lasted 12 months. It did so on the basis of the Claimant’s evidence and the contemporaneous GP records. This was to ignore the fact that type 2 diabetes is not generally a temporary condition and very often has an ongoing, long-term effect on a person in the absence of measures or treatment. On reconsideration the ET addressed whether (during the relevant period of June - November 2023) the adverse effect was likely to last at least 12 months. The ET considered the facts and circumstances during that period and found that the “uncontested position in the OH reports” was significant and concluded that the Claimant’s type 2 diabetes had a substantial adverse effect on normal day-to-day activities, which was likely to last at least 12 months. On that basis the Claimant was found to be disabled as from June 2023.[10]The full merits hearing took place at the Glasgow Employment Tribunal from 12-14 August 2024 before EJ Jones and members. Both parties were represented and called evidence. The issues were agreed to be: i. “Were the claimant’s claims made within the statutory period and if not, should the Tribunal exercise its discretion to determine the claims? ii. Did the respondent know, or should have been reasonably aware that the claimant had the protected characteristic of disability during the material period being 7 June to 14 November 2023? iii. Did the decision on 15 August 2023 to convene a disciplinary hearing regarding an error made by the claimant on 7 June 2023 amount to discrimination arising from a disability in terms of section 15 EqA? iv. Did the respondent fail in a duty to make reasonable adjustments in respect of the claimant, specifically in relation to the requirement to work particular shifts? v. If the claimant’s claims succeed, should the Tribunal make an award in respect of injury to feelings and if so, in what amount?”[11]The ET held that the BBC did not fail in a duty to make reasonable adjustments and did not discriminate against the Claimant in consequence of a disability. 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 (which was held to be June to November 2023, as the Claimant submitted).[12]The ET held that there was no failure to make reasonable adjustments as the BBC made reasonable adjustments by amending the Claimant’s shift pattern. It held that the adjustments alleged by the Claimant were not reasonable and her claim was brought out of time.[13]It held that there was no discrimination by something arising as a consequence of disability because the Claimant’s error on 7 June 2023 was not caused in any material sense by the disability and in any event the disciplinary process was justified as the BBC had a legitimate aim in investigating the error and did so in a proportionate manner.

The Appeal

[14]The Claimant appealed by Notice and Grounds of Appeal dated 22 October 2024. The original 10 grounds were amended with permission of Lord Fairley following a Preliminary Hearing on 6 August 2025. There are three amended grounds before me.[15]Ground 1 is that the ET erred in its approach to assessing the BBC’s knowledge of the Claimant’s disability by failing to ask itself the necessary questions described in Donelien v Liberata UK [2018] IRLR 535 and A v Z [2020] ICR 199.[16]Ground 2 is that the ET erred in failing to consider reasonable adjustments raised by the Claimant - being excused from early and late shifts and being given a more consistent shift rota. In particular the Claimant said the ET failed to consider whether a shift finishing at 00.30 was a late shift and should have been subject to adjustment as advised by OH. The Claimant at this appeal hearing said that there was no argument about other duties or redeployment. That final aspect of Ground 3 was not pursued by her and is dismissed.[17]Ground 3 is a perversity appeal – that the ET erred in its finding of fact that the Claimant’s disability played no role in the error made on 7 June 2023 which gave rise to a disciplinary process. Legal Principles The Scope of an Appeal

Legal Principles

[18]An appeal to the EAT lies only on questions of law. The ET’s judgment must be read fairly and in the round, without overanalysing the ET’s reasoning or taking a hypercritical approach to the way in which the judgment was written. An appellant is not generally permitted to raise new issues that were not before the ET. While a perverse finding of fact that no reasonable tribunal properly directing itself could reach amounts to an error of law, it is a high bar to show that the finding was irrational or certainly wrong. It is exceptional for an appeal to succeed on grounds of perversity. Knowledge of Disability[19]A lack of knowledge of disability is a defence to a claim for discrimination arising from disability under section 15 EqA. Section 15 states:(1) A person (A) discriminates against a disabled person (B) if (a) A treats B unfavourably because of something arising in consequence of B’s disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.[20]Lack of knowledge is also a defence to a failure to make reasonable adjustments under sections 20 and 21. Paragraph 20 of Schedule 8 EqA provides that: [an employer] is not subject to a duty to make reasonable adjustments if [the employer] does not know, and could not reasonably be expected to know— … that [the employee] has a disability and is likely to be placed at the disadvantage referred to in the first, second or third requirement.[21]In determining whether the employer had requisite knowledge of the disability in either case, the employer must show it had no actual or constructive knowledge as to the disability itself (A v Z [2020] ICR 199). The Court of Appeal held in Gallop v Newport City Council [2014] IRLR 211 that the required knowledge, whether actual or constructive, is of the facts constituting the employee’s disability as identified in the definition (in s.6 EqA).[22]Those facts have three elements to them, namely(a) a physical or mental impairment, which has(b) a substantial and long-term adverse effect on(c) his ability to carry out normal day-to-day activities. Whether those elements are satisfied in any case depends also on the clarification as to their sense provided by the statutory definition of disability. If the employer has actual or constructive knowledge of the facts constituting the employee’s disability, the employer does not also need to know that, as a matter of law, the consequence of such facts is that the employee is a ‘disabled person’.[23]An employer’s knowledge is therefore judged by the elements in the definition of disability in section 6 EqA and the clarification in Schedule 1 that the effect of an impairment is long-term if—(a) it has lasted for at least 12 months,(b) it is likely to last for at least 12 months, or(c) it is likely to last for the rest of the life of the person affected. Normal day-to-day activities include those which are normal for a person to engage in at home and also at work as long as they are normal across a range of employment situations (Chief Constable of Dumfries and Galloway Constabulary v Adams [2009] ICR 1034 applying the approach in Chacón Navas v Eurest Colectividades SA [2006] IRLR 706).[24]When assessing the question of constructive knowledge, information from the employee about his disability, the cause of absence or any disability-related symptoms can be of importance. Not knowing the likely cause of a given impairment may make it much more difficult to know whether it may well last for more than 12 months.[25]The Employment Statutory Code of Practice provides:
“5.14 It is not enough for the employer to show that they did not know that the disabled person had the disability. They must also show that they could not reasonably have been expected to know about it. Employers should consider whether a worker has a disability even where one has not been formally disclosed, as, for example, not all workers who meet the definition of disability may think of themselves as a disabled person. 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. 6.19 For disabled workers already in employment, an employer only has a duty to make an adjustment if they know, or could reasonably be expected to know, that a worker has a disability and is, or is likely to be, placed at a substantial disadvantage. The employer must, however, do all they can reasonably be expected to do to find out whether this is the case. What is reasonable will depend on the circumstances. This is an objective assessment. When making enquiries about disability, employers should consider issues of dignity and privacy and ensure that personal information is dealt with confidentially.”
[26]The question of whether it is reasonable for an employer to make enquiries about an employee’s disability is one of fact and evaluation (Donelien v Liberata UK[2018] IRLR 535 at para 27) but a tribunal finding must be adequately and coherently reasoned and must not be perverse. Reasonable Adjustments[27]Section 21 EqA states that a failure to comply with one of the requirements in section 20 is a failure to comply with a duty to make reasonable adjustments and an employer discriminates against a disabled person by failing to comply with that duty in relation to that person. The requirements are set out in section 20, the first of which is: where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.[28]When considering a reasonable adjustments claim, a tribunal must consider the provision, criteria or practice (or ‘PCP’) applied by the employer (or the physical feature of the employer’s premises, as the case may be), the identity of any non-disabled comparators and the nature and extent of the substantial disadvantage suffered by the claimant (Environment Agency v Rowan[2008] ICR 218).[29]The nature and extent of the disadvantage, the employer's knowledge of it and the reasonableness of the proposed adjustment necessarily run together. A tribunal cannot make an objective assessment of the reasonableness of proposed adjustments unless it takes into account the nature and extent of the substantial disadvantage imposed upon the employee by the PCP. Ground 1:

Knowledge of Disability

[30]The Claimant says that when assessing whether the BBC knew or ought to have known of her disability, the ET erred by failing to consider what information the BBC had, what further reasonable enquiries ought to have been made and the results those enquiries would have yielded. Further it is said that the ET placed undue reliance on the absence of clarity in the OH reports and erred in its conclusions at paras 75 to 79 of its Judgment dated 21 August 2024.[31]The ET confirmed that it referred to the Code of Practice on Employment 2011 and the authorities cited by the parties. The ET needed to consider whether the BBC had knowledge of the facts constituting the Claimant’s disability - whether the Claimant had a physical impairment, which had a substantial and long-term adverse effect on normal day-to-day activities. The BBC did not need to know as a matter of law that the consequence of her type 2 diabetes with exhaustion meant that the Claimant was disabled.[32]The ET’s assessment should have included what the BBC actually knew and what it would have discovered had it made reasonable enquiries about her type 2 diabetes. It is reasonable for the BBC to rely on the OH reports that it received. It would have been reasonable for the BBC to ask OH about any aspects of the Claimant’s disability which were unclear from the reports.[33]The ET findings make clear that by June 2023 the BBC had actual knowledge of the impairment, i.e. the type 2 diabetes (see paras 23, 25, 28 and 35). The BBC also had actual knowledge of the fatigue or exhaustion which the condition was causing.[34]The ET thus found the BBC knew about(a) the impairment. The next question for the ET according to A v Z and Gallop was whether the BBC knew about(b) the substantial and long-term adverse effect and(c) on the ability to carry out normal day-to-day activities. In short, the ET had to examine whether there was actual or constructive knowledge of the other two elements in the definition of disability.[35]The ET found that the BBC did not know that the effects of the Claimant’s diabetes were likely to last for at least 12 months. However this is obvious from the fact that diabetes is known to be a long-term and not a temporary condition. It was also indicated by the BBC’s OH report dated 30 May 2023 (at para 35). That reported the diabetes was “under regular monitoring by her treating clinicians” and “can often take a number of months to evaluate the effects...” with a “possibility that medication may be required at some point in the future”. 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 OH report would inevitably have reported that she had a long-term condition.[36]The BBC knew that the Claimant was suffering a more than minor or trivial adverse effect as exhaustion or fatigue was affecting her life. It affected the Claimant’s ability to do activities at work which were normal across a range of employment situations (including controlling various processes and making announcements). It was either clear that this was a substantial adverse effect on normal day to day activities or a matter that the BBC should have asked OH about if there was any uncertainty.[37]Coupled with this, the BBC knew on 30 May 2023 that OH advised that the Claimant “remains off early and late shifts” and “would also need to have regular meal and rest breaks as reasonable adjustments to ensure symptoms associated with her condition do not worsen.” The reference to “reasonable adjustments” would put any employer on enquiry whether OH was using that phrase as they were treating the person who was the subject of the reports as disabled.[38]The ET made findings that the BBC had actual knowledge of type 2 diabetes, the fatigue/exhaustion, the need for appropriate treatment and management. The BBC knew that the Claimant was seeking an “accommodation” because type 2 diabetes was “I’m sure you are aware, classed as a disability?” (see Judgment, para 28). These factors put the BBC on notice that the Claimant was probably disabled and it would have been reasonable for the BBC to make enquiries about whether the known impairment had long-term and substantial adverse effects which met the definition of disability.[39]When considering the Claimant’s return to work on 12 April 2023, the ET said at para 33:
“When the claimant returned to work, the claimant did not indicate to B that there was any ongoing difficulty in carrying out duties, and there was no reason for B to be of the view that the claimant was suffering from an impairment which was likely to last long term and which could have a substantial adverse impact on A’s ability to perform normal day to day activities.”
[40]This finding of fact is difficult to reconcile with the ET’s finding that B did know about her type 2 diabetes – i.e. an impairment with long-term effects, did know about her suffering fatigue as a result, knew the contents of the 28 March 2023 OH report and also knew that the Claimant was referring to the condition as a disability. These factors at least should have put B and the BBC on notice that further enquiries were necessary about whether this condition amounted to disability.[41]The ET said at para 35 that the BBC obtained additional actual knowledge during May 2023. As a result of the OH report on 30 May 2023 the BBC additionally knew that the symptoms were improving, but medication might be required in the future. The BBC knew that the Claimant had not experienced any significant difficulties at work and was managing except for shift work but “would also need to have regular meal and rest breaks as reasonable adjustments to ensure symptoms associated with her condition do not worsen”.[42]This suggests that the BBC knew both about the Claimant’s disability and that she faced a substantial disadvantage in working early and late shifts which required reasonable adjustments despite being able to complete all other duties at work.[43]The ET records that the BBC obtained further actual knowledge in June 2023 that the Claimant was struggling to work the BBC Scotland Late shift which finished at half past midnight as it involved 6 hours without a break.[44]The ET recorded its conclusions on knowledge of disability at paras 69-79. It considered the BBC’s knowledge at the beginning of June 2023 finding at para 74: 74. There was therefore nothing at this point to suggest that the claimant was suffering from an impairment which was likely to have a substantial and long term impact on their ability to perform normal day to day activities.[45]That conclusion involves an error of law as the BBC plainly knew about the factors I have already identified – principally that the Claimant had type 2 diabetes and was substantially affected at work and in her life by exhaustion. To say that there was “nothing” at this point to suggest that the Claimant was disabled involves ignoring those findings of fact and not applying the correct legal test. The ET noted in paras 72 and 73 some of the things that the Claimant was able to do. It found that “While the claimant did make reference to fluctuating symptoms including extreme tiredness, there was no suggestion that the claimant was not fit to return to work after only 2 weeks of absence”. It said “that the claimant had not experienced any significant difficulties with the requirements of attention to detail and quick reactions necessary to perform their role. In addition the report indicated that the claimant was managing their duties and it was hoped that there should be little if any impact on the claimant’s performance other than restrictions on shift working at that time”. It has been long held when considering the elements of the definition of disability that a tribunal must concentrate on what a person cannot do rather than trying to balance what a person can and cannot do.[46]In para 77 the ET finds a lack of actual or constructive knowledge saying that “there was no indication from the claimant’s GP or occupational health that the claimant’s diabetes could not be brought under control and indeed the reports suggested that the symptoms were improving”. However whether an impairment can be brought under control is not the test, particularly as that may involve consideration of medication, treatment or measures which may need to be discounted to analyse the ‘deduced effects’. The ET also note that the BBC was aware that the Claimant sang in a band at weekends, was also suffering stress and appeared well at work. These matters are potentially irrelevant as an employer must focus on what an employee cannot do when assessing a substantial adverse effect on normal activities rather than balance what they are able to achieve.[47]The ET correctly records that the BBC received OH advice that the Claimant was disabled on 8 December 2023 but discounted this as the “report did not specify why the claimant was disabled other than by reference to “the medical condition(s)” as recorded above” noting that diabetes was only one of those conditions.[48]In those circumstances the ET was wrong in law to find that the BBC “was not and could not reasonably have been aware that the claimant was a disabled person between June and November 2023 by reason of the impairment of exhaustion arising from type 2 diabetes”. In my judgment the elements of actual knowledge found by the ET, together with it being clearly reasonable for the BBC to ask supplemental questions about disability when obtaining OH reports and also the final OH conclusion when asked whether the Claimant was disabled, all point to there being only one answer to this issue. Any reasonable tribunal properly directing itself would find that the BBC knew or ought to have known that the Claimant was disabled at the relevant time and that the BBC was not able to make out a knowledge defence to the two disability claims.[49]Therefore I allow the appeal on Ground 1 and substitute a finding that the BBC’s defence of lack of knowledge is not made out. Ground 2:

Reasonable Adjustments

[50]The Claimant submits that the ET erred by failing to consider whether it was a reasonable adjustment to relieve her from the BBC Scotland Late shift and thereby give her a more consistent and stable rota during the day and early evening.[51]The Notice of Appeal says that the ET erred “in not fully considering those suggested adjustments at paragraphs 80 to 89 of its judgment. To take just one example, there was no consideration of whether a shift finishing at 00.30 constituted a “late shift”. That was of particular significance given that it was just such a shift which occasioned what the appellant claims was a discriminatory disciplinary process.”[52]Mr Bhatt for the BBC rightly submits that a claimant must identify the adjustments that they contend ought to have been made in order for a respondent to know the case it must meet and the ET to know the case it must decide (Project Management Institute v Latif [2007] IRLR 579 at para 53). The burden of proof reverses where a claimant presents evidence of a potentially reasonable adjustment that would mitigate or prevent the substantial disadvantage caused by the operation of the PCP.[53]The reasonable adjustments claim was clarified at a case management hearing before EJ Whitcombe on 12 January 2024 as:
“a. elimination of the requirement to work BBC Scotland late shifts finishing at 00:30 and b. greater shift stability, which must either be defined by [the Claimant] or else explained by reference to an illustrative shift pattern.”
I accept that greater clarity was provided at trial that a daytime or similar stable shift pattern would be a reasonable adjustment. The Claimant suggested that adjusted shifts would be for a period of 2 – 3 weeks at a time giving an element of stability and so they would not change too frequently.[54]The ET’s findings about the proposed reasonable adjustment are at paras 80 to 89. It began by correctly observing that it is not for an employee to specify what reasonable adjustments ought to be made as the duty is on the employer to make reasonable adjustments. It said at para 80 that it “necessarily involves a degree of discussion between the parties in order to fully understand what the disadvantage being experienced by the employee is and what steps might be taken to address that disadvantage.” This reflects normal good practice although saying that discussion is always necessary is not strictly correct as it will depend on the circumstances.[55]The ET did not direct itself to Environment Agency v Rowan and does not expressly consider the nature and extent of the disadvantage. This places it in a difficult position in making an objective assessment of the reasonableness of excusing the Claimant from the BBC Scotland Late shift as it does not expressly consider the nature and extent of the substantial disadvantage imposed upon the Claimant by the PCP to work late shifts.[56]The ET does say at para 81-82:
“81. There is no dispute that the claimant’s contract required them to work a shift pattern which involved early, day and late shifts. The pattern was over an 8 week period in order to reflect the number of staff on the rota. There were 8 full time staff on the rota. The rota had been agreed after a long process of consultation with both staff and unions. It had been a complex exercise.” 82. The respondent did make significant adjustments to the rota to accommodate the claimant’s needs. From April to August 2023, the claimant worked a shift pattern where the latest shift ended at midnight and that shift was only worked on 7 occasions over that period. The claimant’s hours were reduced by 30% but full pay was maintained.”
[57]The implication of this is that the ET considered that the shift pattern placed the Claimant at a substantial disadvantage, but it is difficult to discern any findings over the extent of that disadvantage. It records that the BBC did make ‘significant adjustments’ to the rota by reducing the number of late shifts to 7 over the period and maintaining full pay.[58]The ET’s findings about the reasonableness of the Claimant working a more stable shift are contained in paras 83-89, but they are hampered by its failure to start by identifying the extent of the disadvantage faced by the Claimant. Instead the ET begin its assessment of reasonableness with the finding at para 84 that “there was no medical evidence that the claimant could not work evenings and the claimant did not suggest to the respondent that she couldn’t work evenings at that stage.”[59]There was plainly medical evidence from OH that it would be a reasonable adjustment for the Claimant not to work late shifts which would involve working during the late evenings. The ET must mean that there was no medical evidence of any substantial disadvantage in working early evenings. The Claimant was able to work the day shifts finishing at 6 or 7pm. However the ET are not engaging with the proposed adjustment which did not involve any change to early evening working. The ET next correctly record that “the claimant did not suggest that she would only be able to work the same shift every day” but that was a straw man as it was not the adjustment that the Claimant had proposed. She proposed greater stability for 2-3 weeks at a time.[60]The ET rightly take into account whether it would be reasonable to maintain the Claimant on full pay if there was an adjustment which required her to work only 30% of her contractual hours. The ET was being asked to consider a shift pattern where the Claimant worked a more stable pattern of day shifts instead of late shifts and was not proposing that she work fewer shifts in total.[61]The ET did take into account the BBC’s arguments that requiring the other members of the team to swap shifts with the Claimant was not reasonable. It noted that there would less diversity of voices during the day if the Claimant’s voice was heard more, but did not address whether there would be the same diversity across the whole day or week. The ET noted in para 86 that the BBC would need to incur additional freelance staff costs and adjust the shift patterns of the Claimant’s colleagues but did not address whether these steps were practical or not, albeit it did note that the adjustment that the BBC had in place at the time of the hearing was a reduction of 70% in the Claimant’s contractual hours for an indeterminate time.[62]The ET then commented that “if the adjustment ought to have been made from June 2023, notwithstanding the claimant’s agreement to working the pattern which had been proposed at that time, then the claimant’s claim is out of time”. This was not fully examined as the ET went on to dismiss the reasonable adjustments claim on the merits, but the ET do not appear to have had in mind that in a reasonable adjustments claim time does not normally run from when the adjustment should first have been made (here June 2023 as the ET states “There was no evidence that the adjustment should have been made at any earlier stage”). Matuszowicz v Kingston upon Hull CC [2009] ICR 1170 and Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640 mean that where a failure is an omission or inadvertent time runs from the date when the employer might reasonably have been expected to make a reasonable adjustment.[63]The ET failed to address the proposed adjustment to remove the Claimant from the BBC Scotland Late shift and thus erred in law in its conclusions in para 89:
“However, even were the claimant’s claim to have been lodged in time, the Tribunal is of the view that it is bound to fail. The Tribunal’s conclusion is that in so far as the respondent was under a duty to make reasonable adjustments, it complied with that duty by agreeing with the claimant to an amended shift pattern. The respondent followed occupational health advice. In addition they did not simply blindly follow that advice and sought clarification and regular updates. This therefore seemed to the Tribunal to be more in line with the facts of Donelien v Liberta [2018] EWCA Civ 129 rather than Gallop v Newport City Council [2013] EWCA Civ 1583. The proposal that the claimant work a stable shift pattern within normal office hours for a period of 2 to 3 weeks while remaining on full pay was not, in the particular circumstances of this case, a reasonable adjustment.”
[64]The ET ought to have engaged with the question of whether it was reasonable for the BBC to introduce a more stable shift pattern by taking her off the BBC Scotland Late shift. The ET found that on 5 June 2023 the Claimant asked the BBC to adjust her BBC Scotland Late shift which finished at half past midnight as it involved 6 hours without a break (para 38). On 23 June the Claimant informed the BBC that she was finding the BBC Scotland Late shift problematic with regard to their effect on her health (para 44).[65]The Claimant said that OH had advised against working late shifts, but needed to cover the late shift as the relevant manager said “the advice from OH is not yet available” (para 44). The BBC took the position that the OH advice was not clear.[66]The BBC thought that as the Claimant had initially agreed to do one of the late shifts, when the 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. That does not appear to me to be a fair reading of the OH advice and other documentation. That documentation indicated that although the partial adjustment was working and should be continued, all late shifts should be part of the adjustment. The ET erred in failing to engage with the question of whether it was reasonable for the BBC to take this approach and to adjust some but not all of the Claimant’s late shifts.[67]The ET does not address the reasonableness of the BBC’s approach to keep the Claimant working on a late shift while it questioned the OH advice. The ET recorded that a further OH report was produced on 14 August following these emails. It confirmed that a late shift meant one finishing late in the evening or after midnight. The report also noted that the Claimant had reported that one of the causes of her errors was fatigue and anxiety relating to her disability, but OH could not reach any medical conclusion about the cause of her errors at work.[68]In assessing reasonable adjustments it was necessary for the ET to consider the failure to adjust the BBC Scotland Late shift and make findings about whether that was reasonable in light of the OH advice about late shifts.[69]I do not accept Mr Bhatt’s submission that the ET concluded that the BBC was not aware or could not reasonably have been aware that the Scotland Late shift caused the Claimant to suffer a substantial disadvantage. The BBC knew this from the Claimant and from their OH reports.[70]The ET’s failure to address the advice to remove the Claimant from the BBC Scotland Late shift was an error in law and must be remitted for fresh consideration.

Ground 3: Perversity

[71]This Ground of Appeal is a perversity challenge to the ET’s finding that the Claimant’s disability played no material role in her error of 7 June 2023.[72]Although the disability judgment of EJ McManus held that the relevant period for the purposes of disability commenced on 7 June 2023, the ET did not make any finding about whether the Claimant was exhausted as a consequence of her type 2 diabetes on any particular evening.The ET concluded that the Claimant was disabled as she suffered a substantial and long-term adverse effect on normal activities by reason of the diabetes related exhaustion across that whole period.[73]I accept Mr Bhatt’s submission that EJ McManus did not find that the Claimant was exhausted on any specific day or at any specific time within that period. There is no contradiction between the two judgments.[74]The ET set out its relevant finding of fact at para 93: The claimant’s argument appeared to be that the mistake made on 7 June was made because of exhaustion which was something arising from the claimant’s disability. The Tribunal was not at all satisfied that the error made by the claimant on 7 June was caused in any material sense by exhaustion arising from the claimant’s disability. There was no evidence to suggest that exhaustion was the reason for the error other than that this was the opinion subsequently formed by the claimant as the reason for the error. The claimant gave no indication of unfitness to work on that day. Occupational health advice did not suggest that the claimant was unfit to work. The claimant did not refer to exhaustion in the log completed in relation to the incident. The claimant had been performing at an event on the weekend before the error. The claimant had sent scripts for checking earlier that day that had been required and gave no indication of suffering from exhaustion. The error itself was that the claimant did not ‘go into circuit’, that is take control of what was being broadcast, until 45 seconds into a one minute news bulletin. The Tribunal accepted that it would have been appropriate to have gone into circuit at least 15 minutes prior to the broadcast. There was no suggestion that the claimant had fallen asleep due to exhaustion. The claimant had returned from a meal break at around 6.30pm. Even if the Tribunal were to accept the claimant’s evidence that blood sugars can peak in the hour after eating and that this can cause tiredness, this does not explain why the claimant did not take control of the broadcast until 45 seconds after it had commenced. The claimant suggested that fatigue might have been exacerbated by having worked a Scotland late shift the previous day. However, B’s evidence was that the claimant had sent a ‘perky email’ with the draft scripts, and there was no reason to believe that the claimant was too tired to carry out the necessary duties. Therefore the Tribunal did not accept that there was any evidence that the error had in any material respect, been caused by the claimant’s disability.”[75]It is not perverse, irrational or certainly wrong for the ET to find that the error on 7 June 2024 was not caused in any material sense by exhaustion arising from the Claimant’s disability. I bear in mind that the perversity threshold is very high and it is irrelevant whether or not I would have come to the same conclusions on the facts or not.[76]The ET noted the history of similar incidents, some prior to her disability. It permissibly took into account that the Claimant gave no indication of unfitness to work on the day in question and did not refer to exhaustion in the log completed after the incident.[77]The ET took into account the Claimant’s evidence that blood sugars can peak in the hour after eating and this can cause tiredness. The ET permissibly assessed the credibility of the evidence and held that this did not explain why the Claimant did not take control of the broadcast until 45 seconds after it had commenced.[78]It was not irrational or impermissible for the ET to take into account a “perky email” with draft scripts sent to the BBC earlier on that same day. The ET was entitled to take into account the background to the error at 7pm including whether there were any signs of exhaustion earlier that day. I accept Mr Bhatt’s submission that the ET was entitled to look at the totality of the events on that day and take into account all the evidence from the day in question to assess whether the Claimant was too tired to carry out the necessary duties.[79]Perversity requires an overwhelming case that the ET reached a decision which no reasonable tribunal could reach on a proper appreciation of the evidence. The Claimant does not reach this high threshold and Ground 3 must be dismissed.[80]I also accept that Ground 3 is academic as its outcome makes no difference to the overall outcome of the section 15 EqA claim as the Claimant has not appealed the ET’s conclusion that the BBC’s actions were a proportionate means of achieving a legitimate aim. Therefore the section 15 claim cannot succeed in any event and Ground 3 must be dismissed on that basis also.

Outcome

[81]I therefore allow the appeal on Grounds 1 and 2 and dismiss Ground 3. I substitute a finding that the BBC had knowledge of the Claimant’s disability at the relevant time and remit the s.20 and 21 EqA reasonable adjustments claim to the ET for consideration and in particular whether:a. The PCP of requiring the Claimant to work the BBC Scotland Late shift put her at a substantial disadvantage in comparison with non-disabled comparators (actual or hypothetical);b. If so, whether the BBC took such steps as it is reasonable to have to take to avoid the disadvantage.[82]I invited the parties' submissions on remission. The Claimant proposed remission to a fresh tribunal, submitting that the ET’s perverse finding about knowledge and failures in considering adjustments was totally flawed and undermined faith. Although I consider that the ET would approach its task with professionalism, it might be viewed as having made up its mind on adjustments on the wrong basis. The Respondent said the 3 days of evidence in August 2023 meant that it would be fair, proportionate and save time and expense if remitted to the same ET. However, the previous ET will probably have forgotten the detail of the case since 2023, the remaining issues are narrow, any ET can draw upon the substantial existing factual findings and so the time estimate is likely to be the same. Those factors coupled with the additional likely delay involved in relisting before the same ET means the overriding objective favours remission to a fresh tribunal.

Cited in 1 later judgment