Can employees be personally liable for failures to make reasonable adjustments?

Background

In Merriman v 1st Staff Ltd and others, the claimant worked as a tutor through an agency. After developing disabilities that made in-person teaching difficult, she requested adjustments, including teaching online.

She brought reasonable adjustments claims against the agency and four people who worked for it. At a preliminary hearing, the employment tribunal allowed the claim against the agency to continue but struck out the claims against the individuals. It considered that only an employer could face a claim for failing to make reasonable adjustments.

EAT decision

The EAT overturned that decision. Although the duty to make reasonable adjustments is imposed on an employer or principal, an organisation acts through people. Under the Equality Act 2010, an employer can be treated as having done an act carried out by an employee in the course of their work. The employee may also be personally liable where the statutory conditions are met.

Personal liability remains possible even if the employer establishes that it took all reasonable steps to prevent the discriminatory act. The EAT also confirmed, applying an earlier decision, that a tribunal has no discretion to decline to find an individual liable once the conditions for liability are satisfied.

The four individuals were restored to the claim. The EAT made no finding that they, or the agency, had failed to make reasonable adjustments. The claimant must first clarify what she alleges each individual did or failed to do, so those allegations can be considered by the tribunal.

Learning points for employers

Managers and HR staff involved in adjustment requests should understand that their own actions may be scrutinised, as well as the organisation's response. Requests should be considered promptly, with clear routes for obtaining advice and escalating decisions where necessary.

It is sensible to record the adjustments considered, who took part in the decision and the reasons for the outcome. Training and effective procedures can help prevent problems, but training does not automatically protect an individual from personal liability.

If a claim names both the employer and individual staff, their interests may differ, particularly if the employer intends to argue that it took all reasonable steps to prevent the alleged discrimination. That possibility should be considered early when arranging representation and managing the claim.

For more information or advice, please get in touch with Georgia Blesson in our Employment team.