Knowing when to act: a new lesson on disability and reasonable adjustments 

For many employers, the starting point for workplace adjustments is an employee telling their manager or HR team that they are disabled. From there, the organisation can discuss what support might be appropriate and, where necessary, consider its duties under the Equality Act 2010. 

A recent Employment Appeal Tribunal decision is an important reminder that the position is not always that straightforward. 

In Cunningham v British Broadcasting Corporation, the Tribunal found that an employer may be treated as knowing that an employee is disabled even where the employee has not made an explicit disability disclosure and occupational health has not definitively described them as disabled. 

What happened in Cunningham v BBC? 

The case concerned a BBC employee who had a medical condition which caused, among other things, fatigue and exhaustion. 

The BBC knew about the condition and had information about the effect it was having on her. Occupational health reports had also referred to reasonable adjustments, although occupational health had not expressly concluded that the employee was disabled for the purposes of the Equality Act. 

An earlier Employment Tribunal decided that the BBC did not have the necessary knowledge of her disability. On appeal, however, the Employment Appeal Tribunal reached a different conclusion. It held that the information already available to the BBC, together with the further questions it could reasonably have asked, meant that it knew or ought reasonably to have known that the employee was disabled. 

That distinction – between what an employer actually knows and what it could reasonably be expected to know – is particularly important. 

Employees do not have to arrive with a label 

There are many reasons why an employee might not make an explicit disclosure. They may not consider themselves disabled. They may have a condition that has never been formally diagnosed. They may be uncertain whether something meets the legal definition of disability, or simply prefer to talk about the practical difficulties they experience rather than their health. Others may worry about stigma, confidentiality or how disclosure could affect their career. 

This creates an important challenge for employers. Managers are not expected to diagnose employees, and nor should they make assumptions about somebody’s health. At the same time, repeatedly overlooking information that suggests an employee is experiencing substantial and potentially long-term difficulties can carry its own risks. 

The practical answer is to make it easier for people to talk about barriers and support without requiring them first to adopt a particular label. 

Look at the workplace impact 

The Equality and Human Rights Commission describes the reasonable-adjustment duty as a positive and proactive duty. That is a useful way of thinking about the issue beyond legal compliance. 

An employee might mention that fatigue is making a particular shift pattern increasingly difficult. Someone may struggle to concentrate in a noisy environment, find lengthy meetings exhausting or repeatedly experience difficulties with a particular task or working arrangement. Patterns of sickness absence, return-to-work discussions and previous adjustment requests may also provide useful information. 

None of these things automatically establishes that an employee is disabled. They can, however, provide an opportunity for a supportive conversation. 

The recent judgment makes clear that employers should consider the information available to them as a whole. Where that information points towards a potentially significant health-related disadvantage, reasonable further enquiries may be appropriate. 

Acas similarly advises employers to do all they reasonably can to support disabled staff and to make reasonable adjustments where they know, or could reasonably be expected to know, that somebody is disabled. 

Give managers somewhere to go next 

Recognising that somebody may need support is only useful if a manager knows what to do with that information. This is where many organisations encounter a practical problem. Line managers are often the people closest to employees and therefore most likely to notice emerging difficulties, but they cannot be expected to be experts in disability, health conditions and workplace adjustments. 

Without appropriate guidance, a well-intentioned manager may delay acting while waiting for HR or occupational health. Another may offer an adjustment that does not address the underlying barrier. Others may simply be unsure what questions it is appropriate to ask. 

A more effective approach is to give employees a safe and structured way to explain how they experience work, while giving managers practical guidance on appropriate support. 

ClearTalents is designed around exactly this principle. Employees can share the workplace issues, needs and circumstances that are relevant to them without the process depending upon an explicit disability declaration. Where an employee does choose to share more, the structured process can also make sensitive disclosure easier and more purposeful. 

Crucially, that information is translated into expert adjustment recommendations and practical guidance for the line manager. This helps managers move from noticing that something may be wrong to having a constructive conversation about what could make work better.  

Earlier support is better for everyone 

Cases such as Cunningham v BBC inevitably attract attention because they reach an Employment Tribunal. For most organisations, however, the more useful lesson comes much earlier in the process. 

Early conversations can also help prevent a workplace difficulty becoming a performance issue or leading to prolonged absence. They give employers an opportunity to understand what is happening while there is still scope to resolve it collaboratively. 

This requires more than a policy saying that disabled employees can request an adjustment. Employees need accessible and trusted ways to explain what is affecting them, and managers need enough support to respond consistently and confidently. 

The legal position reinforces that approach. An organisation cannot always rely on the absence of an explicit disability disclosure if the information already available should reasonably have prompted it to look further. 

For employers, the opportunity is to build a workplace in which those conversations happen naturally and early – long before anybody needs to consider what an Employment Tribunal might conclude the organisation should have known. 

How we can help 

Find out how ClearTalents helps organisations identify workplace barriers early and deliver consistent, appropriate workplace adjustments at scale. 

Contact us to arrange a demonstration and discover how a more proactive approach to workplace adjustments can benefit your organisation.