What is a Section 278 Agreement?

A Section 278 Agreement is a legal agreement between a developer and a highway authority to carry out highway works.

Disability Discrimination: Why Employers Might Know More Than They Think They Do

A recent Employment Appeal Tribunal (EAT) case is a useful reminder that employers should not assume an employee is not disabled simply because occupational health has not said so in clear terms.

In Cunningham v BBC, the employee had type 2 diabetes, which caused significant tiredness. The BBC knew about her condition and had made some changes to her shifts. However, it continued to require her to work a late shift that finished at 12.30am.

After the employee made an error during one of these shifts, she was disciplined and brought disability discrimination claims. The BBC argued that it did not know she was disabled at the time.

The EAT disagreed.

Under the Equality Act 2010, a person is disabled if they have a physical or mental condition that has a substantial and long-term effect on their ability to carry out normal day-to-day activities. Whether someone meets this definition is a question of fact. It is not something that occupational health or a GP decides.

The EAT found that the BBC knew about the employee’s diabetes, understood that it was causing fatigue, and had received occupational health advice discussing reasonable adjustments. Taken together, this meant the BBC knew, or should have known, that the employee might be disabled.

This is known as constructive knowledge. In simple terms, it means an employer may be treated as knowing about a disability even if nobody has formally confirmed it. If there is enough information available to raise the possibility of a disability, employers are expected to make further enquiries rather than ignore the issue.

For HR professionals, the lesson is clear. Don’t focus solely on whether an employee has been formally labelled as disabled. Instead, consider the impact their condition is having on their day-to-day activities and whether further investigation or workplace adjustments may be needed. Taking a proactive approach can help reduce the risk of disability discrimination claims.

About Jon Dunkley

Jon Dunkley is a Partner at Wollens and heads up the firm’s Regulatory Department. Based at our North Devon office, Jon is a highly experienced solicitor with a broad commercial and regulatory practice, supporting businesses, professionals and senior employees across a wide range of legal issues.