Reasonable adjustments: when can managers be personally liable?

Adrian Fryer

The duty to make reasonable adjustments under the Equality Act 2010 is imposed on the employer. Does that mean an individual manager involved in a failure to make an adjustment cannot be personally liable?

The Employment Appeal Tribunal has confirmed in Merriman v 1st Staff Ltd and others that the answer is no.

Employer duty, individual liability

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 subsequently brought reasonable adjustments claims against 1st Staff and four individuals working for the business.

The tribunal struck out the claims against the individuals on the basis that the statutory duty to make reasonable adjustments rested with the employer. The EAT held that this was the wrong approach.

Although the reasonable adjustments duty is imposed on the employer, an employer necessarily acts through individuals. The Equality Act separately provides for liability where an employee or agent does something which is treated as having been done by the employer.

The fact that the underlying statutory duty rests with the employer therefore does not prevent an employee whose own conduct contributes to its breach from potentially being personally liable. The claims against the four individuals were reinstated.

A significant distinction

The decision highlights an important distinction between the existence of the duty and liability for conduct which causes the employer to breach it.

That has potentially significant consequences for managers making decisions about adjustments. Personal liability is not confined to more obvious acts of discrimination, such as making a discriminatory remark or subjecting someone to harassment. It can potentially extend to a manager’s involvement in an employer’s failure to comply with a positive statutory duty.

There is another important consequence. An employer may avoid vicarious liability for an employee’s discriminatory act if it can establish the statutory defence that it took all reasonable steps to prevent the employee from committing that act. That defence applies to the employer’s liability; it does not necessarily protect the individual who committed the discriminatory act from their own liability.

Why does this matter?

Merriman reinforces the importance of identifying precisely who was involved in decisions about reasonable adjustments and what each person did or failed to do.

For senior HR professionals, it is also a reminder that reasonable adjustments should not be viewed solely as an organisational compliance issue. Managers exercising delegated decision-making authority may themselves become respondents to proceedings where their conduct is alleged to have resulted in a failure to make reasonable adjustments.

That makes clear governance around adjustment decisions important: who has authority to make them, when matters should be escalated, and how the reasoning behind decisions is recorded.

Contact Adrian Fryer, Senior Partner and Head of Employment.