The Employment Appeal Tribunal has confirmed that individual employees can be personally liable for disability discrimination arising from a failure to make reasonable adjustments.
In the case of Merriman v 1st Staff Ltd and others, the EAT overturned a tribunal decision that struck out reasonable adjustment claims against individual respondents.
In the initial tribunal claim, the judge ruled that only the employer could be liable as the statutory duty to make reasonable adjustments resides with the company. However, in what could be a significant development for employers and managers, the EAT disagreed.
In her employment tribunal claim, Ms Merriman brought claims against her employer, 1st Staff, and a number of individuals who had been involved in decisions concerning her workplace adjustments.
She had been engaged via an agency to work as a tutor for a person with special needs. At one point, responsibility for funding shifted between the NHS and local authority, and there was a complex series of umbrella and service companies surrounding her employment.
Merriman developed disabilities that made it difficult for her to attend the premises of her tutee, so she sought adjustments to include online teaching.
However, this created a potential need for the person to have a care worker with them to ensure they were engaging with the session, the tribunal heard.
The decision on her continuing employment arguably rested with the funding bodies rather than the intermediaries through which she delivered her services, including the employer, the EAT reasoned.
However, the initial tribunal struck out the claims against the individual respondents, ruling that the appropriate duties under the Equality Act 2010 only applied to her employers.
The EAT has now held that this approach was too narrow, as employers can only act through their employees and agents. Where an employee’s actions contribute to a failure to comply, both the employer and the individual(s) could be liable.
Judge Barklem referred to an earlier EAT decision in Baldwin vs Cleves School, which confirmed that where the requirements of section 110 of the Equality Act are not met, tribunals have discretion to find an individual personally liable.
The strike-out was reversed, and a number (but not all) of the individual respondents were re-added to the proceedings. Her appeal succeeded, and the case will now return to the tribunal.
Clare Walsh, senior associate at Winckworth Sherwood, said the practical impact of the EAT’s decision should not be underestimated.
“Being named as a respondent can involve personal involvement in litigation, preparing witness evidence and attending hearings, reputational concerns, and potential financial liability in some circumstances,” she said. “The decision also creates a potential conflict between employers and individual respondents.”
She advised HR teams to strengthen their reasonable adjustment processes, train managers on them, record decisions carefully and seek expert occupational or HR advice if cases are complex.
“This decision reinforces the importance of treating reasonable adjustment requests as a shared organisational responsibility rather than solely an employer obligation,” she added.
“HR professionals and managers should assume that their actions, decisions and delays may be scrutinised individually in tribunal proceedings.
“Robust processes, training and documentation will therefore be more important than ever in managing disability-related issues and reducing legal risk.”
Source: https://www.personneltoday.com/hr/individuals-can-be-liable-for-reasonable-adjustment-failure-rules-eat/
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