In a significant decision for all employers and managers, the Employment Appeal Tribunal (EAT) has ruled in Merriman v 1st Staff Ltd and others that individual employees may face personal liability for breach of the duty to make reasonable workplace adjustments for disabled employees. This could result in more Tribunal cases being brought against individual managers who have been involved in a decision about reasonable adjustments.
Background
Ms Merriman was engaged by an agency, 1st Staff Ltd, to provide tutoring services to an individual with special needs. She developed disabilities which meant it was very difficult for her to provide tutoring in person and requested adjustments, including a move to online teaching. When this request was not met, Ms Merriman brought a claim for failure to make reasonable adjustments, initially against 12 respondents due in part to the complex series of umbrella and service companies which had been used to pay her. By the time of the appeal, there were five remaining respondents, including 1st Staff Ltd and individual employees.
Employment Tribunal's Initial Decision
At a preliminary hearing, the Employment Tribunal struck out Ms Merriman’s claims against the individual respondents on the basis that they had no reasonable prospects of success since the statutory obligation to make reasonable adjustments under the Equality Act 2010 rests solely with an employer, not its employees. The claim against the agency was allowed to proceed.
Employment Appeal Tribunal's Decision on Individual Liability
On appeal, the EAT reversed the Tribunal’s decision to strike out Ms Merriman’s claims against individual employees, ruling that it was an error of law. Although the duty to make reasonable adjustments rests with an employer, a company can only act through its employees or agents. Where an employee’s conduct amounts to a breach of that duty, the employee can therefore be equally and personally liable. Following the 2024 case of Baldwin v Cleves School and others, Tribunals have no discretion to refuse to make a finding of personal liability if the relevant legal conditions are satisfied, even if the employer succeeds in a defence that it took all reasonable steps to prevent the discrimination. The EAT noted that its analysis was supported by the Equality and Human Rights Commission’s statutory Employment Code of Practice.
The EAT ordered that the individual respondents be rejoined to Ms Merriman’s reasonable adjustments claim and remitted the case to the Employment Tribunal. Ms Merriman will now be required to provide proper particulars of the allegations against each individual respondent.
Implications for Employers and Managers
This decision means that when an employee is held to have committed an act of discrimination for which an employer is vicariously liable, the employee is equally liable, even if the employer avoids liability by establishing the reasonable steps defence. Any individual manager involved in responding to a request for reasonable adjustments could therefore be personally liable for their decisions. This could also result in a conflict of interest in any Tribunal litigation where the employer runs a successful reasonable steps defence, since this could shift liability to individual respondents. However, claimants will have to identify the precise acts and omissions attributable to each named respondent. Employers are advised to assess the consequences of this decision and should consider implementing refresher training for managers on the duty to make reasonable adjustments. This will help minimise the risk of claims by ensuring that the process for dealing with requests is robust; requests are dealt with promptly, fairly, and consistently; and decisions and reasoning are properly documented.
