EAT confirms individual employees can face personal liability in reasonable adjustments claims

A recent decision from the Employment Appeal Tribunal (‘EAT’) in Merriman -v- 1st Staff Ltd and Others provides an important reminder for employers and managers dealing with workplace adjustments for disabled staff.

The EAT held that individual employees could be personally liable in addition to the employer for failure to make reasonable adjustments in relation to disabled employees.

Legal background

Under sections 20 and 21 of the Equality Act 2010, employers have a duty to make reasonable adjustments where disabled workers are placed at a substantial disadvantage in comparison with employees who are not disabled.

The Act also contains provisions on vicarious liability (section 109) under which anything done by an employee in the course of their employment is treated as having also been done by the employer, however, the employer can invoke a potential defence if it can show that it took ‘all reasonable steps’ to prevent the employee from doing the discriminatory act (section 109(4)). Employees can also be held personally liable for discriminatory acts carried out in the course of their employment (section 110).

Until now, there has been uncertainty about how those provisions apply in the context of reasonable adjustments claims, given that the statutory duty itself is imposed on the employer rather than individual employees.

Factual background

The claimant was engaged via an agency, 1st Staff Ltd, to work as a tutor for a person with special needs. She developed disabilities that made it difficult for her to continue working in the usual way. She requested adjustments, including the ability to provide tuition remotely rather than face-to-face. A dispute arose regarding whether appropriate adjustments had been made. She subsequently brought a claim for failure to make reasonable adjustments under sections 20 and 21 of the Equality Act 2010.

At a preliminary stage, the Employment Tribunal allowed the reasonable adjustments claim to continue against 1st Staff Ltd but struck out the claims against several individual employees of the agency. The Tribunal considered that the duty to make reasonable adjustments rested solely with the employer and could not be pursued against individuals. The claimant appealed to the EAT.

The EAT decision

The EAT allowed the appeal. It held that although the statutory duty to make reasonable adjustments is imposed on the employer (or principal), organisations can only act through their employees and agents. Where an employee's actions contribute to a breach of that duty, the provisions on employer vicarious liability and employee personal liability under sections 109 and 110 of the Equality Act 2010 may be engaged.

The EAT relied on its earlier decision in Baldwin -v- Cleves School, which confirmed that where an employee commits an act of unlawful discrimination for which the employer is vicariously liable, the employee may also be personally liable. The employee can be personably liable even if the employer succeeds in a defence that it took all reasonable steps to prevent the conduct in question from occurring.

As a result, the individual respondents were reinstated to the proceedings and the reasonable adjustments claims against them were allowed to continue.

Comment

This is an important decision which may have significant practical workplace impact. Moving forwards, it seems highly likely that claims for failure to make reasonable adjustments for disability will be brought against both the employer and the individual managers who were involved in the failure to make the necessary adjustments.

It is an important reminder that reasonable adjustment decision-making should not be viewed solely as an employer-led responsibility. Managers, HR professionals and others involved in considering and implementing workplace adjustments may potentially face personal liability where their actions contribute to discriminatory treatment.

This case highlights the importance for employers to ensure managers understand their responsibilities under the Equality Act 2010, receive regular training, actively explore alternative adjustments where a requested adjustment is not feasible and document the rationale for decisions reached.

While employers remain primarily responsible for compliance with the duty to make reasonable adjustments, this case confirms that individual managers are not necessarily insulated from liability. Organisations should ensure that those involved in managing disabled staff are appropriately trained and supported, as adjustment decisions may have consequences both for the organisation and for the individuals involved in making them.

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