Failure to make reasonable adjustments: EAT confirms managers can be personally liable
Discrimination claims are not always just a problem for the employer. Individual employees can sometimes find themselves named personally in employment tribunal proceedings too.
Under the Equality Act 2010, employers can be liable for discriminatory acts carried out by employees in the course of their employment. But the individual responsible for the act can also be personally liable.
That principle is perhaps easiest to understand where, for example, a manager makes a discriminatory comment or harasses a colleague. But does it also extend to something that is technically the employer’s responsibility, such as the duty to make reasonable adjustments?
The EAT in Merriman v 1st Staff Ltd and others has confirmed that it can.
what happened?
Ms Merriman was engaged through an agency arrangement to tutor a person with special needs. After developing a disability which made attending in person difficult, she asked to teach online instead.
She brought a claim alleging a failure to make reasonable adjustments against 1st Staff and four individuals working for the business.
The tribunal initially struck out the claims against the individuals. It considered that the reasonable adjustments duty rested with the employer, so only the employer could be liable.
The EAT disagreed.
Although the duty to make reasonable adjustments falls on the employer, a business necessarily acts through its employees and agents. Where an employee’s conduct in the course of their employment results in a breach of that duty, they can potentially be personally liable alongside the employer.
The claims against the four individuals were therefore reinstated.
What does this mean for you?
Merriman is a useful reminder that handling reasonable adjustments is not simply a corporate responsibility.
Adding reference to the point made in Merriman into management training on disability issues in the workplace should be considered. A risk of personal liability may help to focus the mind on a fair and reasonable outcome where managers are handling reasonable adjustments issues. Managers involved in considering requests should understand the legal duty, know when to involve HR and properly engage with possible adjustments.
Perhaps most strikingly, an individual may still be personally liable even where the employer successfully argues that it took all reasonable steps to prevent the discriminatory conduct from occurring.