Employer did have knowledge of the claimant’s disability when she had outlined the diagnosis even if the actual effect was not fully outlined.

The claimant was employed as a television presentation announcer for BBC Scotland and had been in that role since 1987. This involved controlling broadcast content for programmes, trailers and continuity announcements. There were varied shifts.

In March 2023, the claimant emailed a manager informing her of a type 2 diabetes diagnosis and fatigue.  The claimant was referred to occupational health and signed off until end of April 2023.  The claimant requested an adjustment and suggested other duties or redeployment citing the shift work which led to lack of routine, disruption to sleep and irregular meal breaks.  An adjustment was made to remove the claimant from late shifts but she retained the BBC Scotland late which finished after midnight (the BBC One late shift finished at 3am). The claimant referred to the adjustment again in relation to the BBC Scotland late shift and it was confirmed by occupational health that it was a late shift and advised that the claimant should not work on shifts ending at midnight or after. The claimant continued on these shifts as the BBC queried the advice.

The claimant brought a claim for disability discrimination.

At first instance, the claim was dismissed.  The Tribunal found that whilst the BBC had knowledge of the disability in December 2023, they had stated that they did not have the knowledge from June-November 2023.  The claimant appealed on this point.

The EAT held that the Tribunal was wrong in law in finding that the BBC did not or could not reasonably have been aware of the disability from June-November 2023. The Tribunal did not take into account the actual knowledge that had been raised to the BBC nor did they take reasonable steps to ask any supplemental questions about disability.  The Tribunal had found that the BBC did not know the extent of the diabetes but the EAT held that they could have reasonably expected that it would last more than 12 months and could have asked questions about the effect.

It was also found that the Tribunal had erred when they failed to consider whether it was a reasonable adjustment to excuse the claimant from the BBC Scotland late shift to allow for a more consistent and stable rota.  The Tribunal did not consider whether it was reasonable to continue with the claimant on the BBC Scotland late shift when it had been advised by occupational health that it should not be the case.  The Tribunal ought to have considered this question in its decision. Accordingly, the appeal was allowed and the EAT invited submissions regarding remitting the case back to the Tribunal.

This case provides some useful guidance on the role of employers in determining whether there was knowledge of a disability.  In this case, the argument was that the employer did not know it was a disability even though the claimant had stated that there was a diagnosis.  Of course, the legal position requires certain elements (such as length, impairment, effect on day-to-day activities) but the employer cannot bury its head in the sand and think if those points are not expressly stated then no knowledge of disability arises.  Questions should be asked where there is a lack of detail.

You can read the case in full here.