Court of Appeal rules training repayment clause unenforceable
The Court of Appeal has provided important guidance on the enforceability of training repayment clauses in employment contracts.
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Case Study
The Employment Appeal Tribunal (EAT) has delivered an important judgment examining whether an employer knew, or should reasonably have known, that an employee was disabled.
The case, Cunningham v British Broadcasting Corporation, considered the concept of constructive knowledge and an employer’s duty to make reasonable adjustments under the Equality Act 2010.
Ms Cunningham was a long-serving BBC employee who worked shifts on a rotating pattern, including early starts and late finishes. In 2023, she was diagnosed with Type 2 diabetes and informed her line manager of both her diagnosis and her primary symptom of fatigue.
An Occupational Health assessment recommended that treatment, together with adjustments to her working pattern, would help manage her condition. During correspondence with her employer, Ms Cunningham also referred to herself as disabled.
The BBC adjusted her early morning shifts but continued to roster her on shifts finishing after midnight without sufficient rest periods. After raising further concerns and taking a period of sickness absence, a second Occupational Health report recommended that she should not work beyond midnight and identified this as a reasonable adjustment.
Following her return to work, Ms Cunningham made an error while working a late shift and became subject to disciplinary proceedings. Although no disciplinary sanction was imposed, she found the process distressing and brought claims for failure to make reasonable adjustments and discrimination arising from disability.
The Employment Tribunal dismissed both claims. It concluded that the BBC neither knew, nor could reasonably have been expected to know, that Ms Cunningham met the legal definition of disability.
The Tribunal also found that the adjustments already made to her early shifts were sufficient, that further adjustments to late shifts would not have been reasonable, and that the disciplinary process was justified because her error was not caused by her medical condition.
Ms Cunningham appealed.
Case Study
The Employment Appeal Tribunal overturned key aspects of the Tribunal’s decision.
It found that the BBC should reasonably have known that Ms Cunningham was disabled. The information available to the employer, including her own statements, the reasons for her sickness absence and the Occupational Health reports, should have prompted further enquiries into whether she met the legal definition of disability.
The EAT concluded that the BBC had not done all that could reasonably have been expected to establish the position, particularly given its size, resources and access to specialist advice.
The EAT also found that the Tribunal had been wrong to conclude that reasonable adjustments had been properly considered. In particular, insufficient weight had been given to the recommendations contained within the Occupational Health reports.
The case has now been remitted to a fresh Employment Tribunal for the issues to be reconsidered.
This case is a reminder that employers cannot simply rely on what they already know. Where there are clear indicators that an employee may be disabled, employers are expected to make reasonable enquiries before deciding that no disability exists.
Employers should consider the following:
This case also demonstrates that an employer may be found to have constructive knowledge of a disability if reasonable enquiries could have identified it. Simply failing to ask the necessary questions is unlikely to provide a defence.
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