Failure to make reasonable adjustments: manager liability

Merriman v 1^st Staff Ltd

Individual managers can be personally liable for a corporate employer’s failure to make reasonable adjustments.

Background

Ms Merriman had been engaged via an agency to work as a tutor for a person with special needs. She developed disabilities which meant that it was very difficult for her to attend the premises at which the individual she was to tutor resided and she sought adjustments to include online as opposed to face-to-face teaching.

The tribunal allowed Ms Merriman’s claim against 1^st Staff Ltd of a failure to make reasonable adjustments to proceed. However, similar claims against the second, third, fourth and fifth defendants, all of whom were individuals working for 1^st Staff Ltd, were struck out as having no reasonable prospects of success (on the basis that, as the duty to make reasonable adjustments rests with the employer, such claims cannot be brought against individual employees). Ms Merriman appealed this aspect of the tribunal’s decision.

EAT decision

The appeal was allowed.

While the duty to make reasonable adjustments is imposed on the employer or principal, a company can only act through its agents or employees. Where an employee’s act amounts to a breach of the employer’s duty, s.109 of the Equality Act 2010 (employer’s vicarious liability for acts of employees or agents in the course of employment) is engaged and s.110 (liability of employees and agents for unlawful acts treated as carried out by the employer by virtue of s.109) may render the employee personally liable. This personal liability can arise even if the employer succeeds in a defence that it took all reasonable steps to prevent the conduct in question from occurring.

The EAT found support for its position in a statutory code of practice. Paragraph 10.55 of the EHRC’s Statutory Code of Practice on Employment states: ‘Employees and agents may be personally liable for breaches of the [Equality Act] where the employer or principal is also liable. Employees may be liable for their actions where the employer is able to rely successfully on the “reasonable steps” defence.’

Since the tribunal had concluded that the claim could proceed against 1^st Staff Ltd, there was no principled basis for concluding that it could not, at least at this stage, proceed against the individual employee respondents as well.

Comment

While the duty to make reasonable adjustments primarily sits with the employer, this decision reinforces that individuals cannot necessarily hide behind corporate structures when they are personally involved in discriminatory acts.

As the number of disability discrimination claims grows, this is another risk for employers to consider. Personal liability in relation to claims under the Equality Act, remains a risk for those responsible for implementing disability related workplace adjustments.