In the last quarter (to December 2025) HMCTS have reported a total of 8,297 complaints of discrimination being newly submitted to the ET. It is noteworthy that of those, 4,056 (49%) were complaints of disability discrimination specifically.
This high percentage shows how an understanding of disability discrimination is such an important part of the employee advisor’s repertoire. 50% of advice requests are likely to be on this one strand of claim. The recent decision of the Employment Appeal Tribunal in Cunningham v British Broadcasting Corporation [2026] EAT 92 although not ground-breaking is noteworthy and raises four important points helpful for union reps, advisors, and claimants about disability discrimination.
Facts of Case
The claimant was employed as an announcer for BBC Scotland; she was a disabled person because of type II diabetes from at least June 2023. The BBC operated a work rota over 8 week cycles in which announcers had to work a range of shifts, some early (from 5am) and some very late to 3am in the morning). The Claimant found this difficult because of fatigue linked to disability and the employer adjusted her shifts except (by agreement) on one shift that ended at half past midnight.
On 7 June 2023 the claimant made a mistake meaning a live news report started 45 seconds late. This mistake was the subject to a formal disciplinary process from 15 August 2023 although at the end no formal action was taken against her.
In August 2023 the claimant began a sickness absence and the BBC received Occupational Health advice that the claimant should not work the late shift as it was harmful to the Claimant’s health. The facts are not entirely clear but it appears that the requirement to work the later shift continued as at November 2023 when the Claimant started her ET claim.
The claimant’s case was that 1) the decision of 15 August 2023 to commence a disciplinary process was materially caused by her diabetes related fatigue and so was discrimination arising from disability (section 15 Equality Act); and 2) that the BBC’s requirement to require the Claimant to work the one late shift was a failure to make adjustments.
The ET dismissed the claimant’s discrimination claim on the basis that the mistake in the late news airing was not materially caused by her diabetes related fatigue and, if it were, the treatment would have been proportionate. The ET dismissed the claimant’s reasonable adjustments case because it found that the Respondent did not know know the Claimant was a disabled person the requirement to work late put the claimant to a substantial disadvantage.
The Claimant appealed these decisions to the EAT who upheld the appeal about reasonable adjustments but dismissed the appeal about discrimination arising from disability.
There I think four main lessons we can take from this case from an employee perspective.
Lesson 1 – Proving Causation is a challenge
In this case like this the claimant was required to prove that there was “unfavourable treatment” (here the disciplinary investigation), that the reason for the treatment was because of “something” that arose because of disability. Unlike in a direct discrimination case a claimant does not need to show they were treated “less favourably” than others – treatment meted out to anyone which is unfavourable is enough. In this case even without a sanction being alleged to have engaged in misconduct is obviously “unfavourable” (no-one really relishes the prospect of being accused of wrongdoing!).
Again, the cause of the treatment (the “something”) is pretty clear. The claimant was 45 seconds late running a live news segment, that was the “something” that was the reason for the disciplinary investigation.
So far, so good. But where the claimant fell into difficulty (and this is a crucial part of the case that claimants often forget to think through) is how to prove that her mistake was actually materially caused by the claimant’s fatigue that was itself caused by the claimant’s disability. Unless the Claimant could prove that (on the balance of probabilities) then her claim would fail and that is exactly what happened. In this case the employer (by asking for Occupational Health advice reasonably investigated the suggestion that her fatigue contributed to the mistake and the tribunal accepted there was insufficient evidence to prove this was a cause.
This is an area I frequently see claimants and workers falling into difficulties – real thought needs to be given as to what the evidence shows and how the disability causes the “something” and how that will be proven. Sometimes the only evidence is a claimant’s oral evidence but this is often the key battleground in misconduct related discrimination arising claims and so early thought on how this will be proved is vital.
The causation requirement in discrimination arising from disability is a broad one and so this is never a clear cut issue (see for example the decision here and here) but I am noticing a trend where Tribunals are being more robust in rejecting claims on a “misconduct was caused by disability” type case.
Lesson 1: If you are going to argue misconduct was caused by disability issues then a priority at an early stage is to consider what evidence you can bring in addition to your own statements to allow you to convince a tribunal (or indeed internal disciplinary chair) that that is the case.
Lesson 2 – Be Proportionate
In a discrimination arising from disability the claimant need to prove the fact of the unfavourable treatment caused by “something” arising in consequence of disability. But that does not mean the case is won, just that the first hurdle is successfully vaulted. The employer can still argue that the treatment was a proportionate means of achieving a legitimate aim.
In this case the ET found that even if they were wrong on the causation point the case would have still been unsuccessful and I think it is fairly easy to say why they thought that. In the context of the business they operating in a 45 second delay of a live television report to potentially thousands of viewers is a serious issue and justified investigation. That investigation was (apparently) conduct reasonably and came to the conclusion that a disciplinary sanction was not necessary. The unfavourable treatment was not a warning or dismissal but a subjection to a fact finding investigation that found in the claimant’s favour.
Here is where I may have criticism levelled at me – it is certainly possible that subjection to an investigation would fail this test. However, where the unfavourable treatment is more minor, and is the first such instance, I question whether there was ever a reasonable prospect of the treatment not being justified. This requires (not always easy for a claimant representative!) putting oneself in the shoes of the employer.
Lesson 2 – Where treatment is of a less invasive nature (e.g., investigation rather than formal warning) and this is a one off treatment it will often (but not always) be the case that this treatment will be justified and so a claim is unsuccessful at the justification stage (if there were repeated investigations for example the position might be different). Claimants should think carefully how they will argue that the treatment was not proportionate and if not likely think whether to pursue the complaint.
Lesson 3 – Knowledge of impairment
This is probably the most important (and helpful) aspect of the decision. In an email in April 2023 to the employer the Claimant had (mistakenly) said of her Type 2 diabetes “which is, I’m sure you are aware, classed as a disability?” As as been discussed before diabetes may or may not be a disability An employer is only under a duty to make reasonable adjustment when it knows (or should know) that the employee is disabled (that is, in the main, when she meets the definition in section 6 Equality Act 2010).
This is explained in paragraph 22 of the judgment:
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’.
This legal test is then played out and applied in paragraphs 33 to 36.
It was not until December 2023 (after the ET claim had been made) that the BBC received occupational health advice that the claimant was likely to be disabled. It is almost always in an employee’s interest to agree to occupational health assessments for the purpose of identifying possible adjustments at work. However, in larger organisations there is a tendency for employers to defer decisions on whether to make disability adjustments until after a report gives advice on the issue. What this case shows is that is not legitimate excuse for not acting on disability. The BBC was under the duty to consider and make adjustments for disability at the point it knew (or should have known) the three elements (i. physical and mental impairment, ii. substantial and long term adverse affect , and iii. on ability to carry out normal day to day activities) – which was in June 2023, not when someone else had given advice a person was disabled (in this case six months later, in December 2023).
This is the important practical implication of the case. Occupational Health reports are great and helpful, but if an employer is (whether by design or ignorance) postponing decisions on adjustments under the cover of need for a definitive OH report this needs to be challenged. This is in my experience very much a persistent issue in larger bureaucratic organisations that employee reps and employees need to be alert to. In this case it is likely that a reasonable step (and a pragmatic one too) would have been to waive the late shifts from June 2023 until at least definitive OH advice was received. From an employee representative point of view, faced with these cases it is likely submissions on the basis that it is better to err on the side of caution and assume [on a holding pattern basis] that adjustments are required to give the benefit of the doubt to a claimant (which is what the EHRC Code on Employment recommends [at para 6.9]) and, of course, also avoid the real risk to an employer that its deference to a delayed future OH places the employer in actual breach of the duty to make reasonable adjustments (which is what I strongly suspect the remitted ET will find happened here).
Lesson 3: OH reports are a resource to be used by employees to advance case for need for adjustments but there is a need to be alert to fact that duty to make adjustments arises when an employer knows the three elements of disability which can be months before a report confirms the same. Employees need to advocate for adjustments to be made when that knowledge is actually held. OH reports should not be used as an aid not an obstacle for the provision of disability support for employees.
Lesson 4 – The Sting in the Tail
In discrimination a complaint is made about an act of discrimination. The term “act” is defined in section 212(2) Equality Act 2010 saying that a “reference (however expressed) to an act includes a reference to an omission”. In short an act of discrimination can be because an employer did something or did not do something. This is important because in every discrimination complaint there are time limits from the date an act occurred in which the employee needs to start any legal challenge (currently within three months but helpfully this will soon become six months). This present a challenge for workers – it is much easier to complain and recognise acts an employer does to you (for example, giving a disciplinary warning, shouting across an office, dismissing you) compared to an act the employer does not do to you (for example, not inviting you to meetings, not offering a developmental opportunity, and other hidden ‘acts’, etc). The difficulty is by the time you discover you have been left out it may be weeks or even months after the fact and by then the time limit for challenge may already have passed.
For reasonable adjustment complaints this is a very particular problem (and one I think needs reform as the current system forces employees into litigation at a time time issues can reasonably be avoided and resolved). Although a discriminatory act can be both an act or a decision not to act (an omission) in practice discrimination claims tend to focus more on overt acts of an employer (dismissal, disciplinary warning, rejection of job application, offensive comments being made). By contrast, a complaint about reasonable adjustments is always an omission (the employer should have done something but failed to do so).
This raises the question of when time starts ticking for challenge to a claim. The answer is when a decision not to do something is taken, the employer does something inconsistent with the decision or at the end of the period the employer “might reasonably have been expected to do it” (section 123(3) and (4) Equality Act 2010). At the risk of showing my age this asks an employee to adopt Mystic Meg type psychic powers. An employee is required to identify when a decision they do not know was taken was taken or add to an unknown date an imprecise reasonable period in which an act should have occurred.
Why then does the Cunningham v BBC case demonstrate a sting in the tail? Simply because the duty to make reasonable adjustments becomes a legal duty on when 1) the employer knows the employee is disabled (the three elements needed not the medical diagnosis which may come later, if at all), 2) The employee is put to a substantial disadvantage under one of the three reasonable adjustment types (PCP, Auxiliary Aid, Physical feature). It is at the point where that knowledge is held the the time limit start potentially ticking. For this reason the BBC argued the claimant’s case was out of time in the context of what the EAT found to be failures by the BBC to ask timely questions.
This is why time limits in reasonable adjustment in discrimination cases are so tricky and a minefield for claimants. The time limit for a discrimination complaint about an omission starts at a set point in time (even if the claimant does not know what that point in time is) and does extend for all the time that an omission continues. In an important Court of Appeal judgement on this issue recognised that this has the of encouraging claims to be lodged at a much earlier point in time to avoid the risk of being out of time:
claimants and their advisers need to be prepared, once a potentially discriminatory omission has been brought to the employer’s attention, to issue proceedings sooner rather than later – Matuszowicz v Kingston Upon Hull City Council [2009] EWCA Civ 22.
As an employment lawyer for a pro bono charity I see many claims from claimants who have not had any previous union or legal support – it is sadly not uncommon for employees to work for years without reasonable adjustments (often very simple to implement) and complain very late on (for example after a lengthy grievance procedure) and then be faced with substantial difficulties even getting a hearing on their complaint.
Lesson 4: Because time limits for omissions can be very difficult to identify and delay can prevent a claim being heard it is vital for employees to assume a legal complaint will be required from an early stage to ensure they do not fall victim to the late claim trap. If you think your employer is not making reasonable adjustments for you and they have all the information to have the knowledge required to be under the reasonable adjustment duty then don’t be complacent and get early advice so you can protect your legal right to challenge an employer.
Sadly this is not the way employment law should work and it is the way the law currently operates as a trap for the unwary leaving good claims at risk of not progressing because preferred to try to resolve issues in the workplace before considering legal challenge.
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