Failure to Make Reasonable Adjustments: Can individual employees be found personally liable?

Employer’s Duty to Make Reasonable Adjustments

Section 20 of the Equality Act 2010 (the Act) requires employers to take reasonable steps to prevent a disabled person from being placed at a substantial disadvantage compared with a non-disabled person in a related matter.

This duty consists of three requirements where the following circumstances require an employer to make reasonable adjustments:

1. Where a provision, criterion or practice of the employer puts a disabled person at a substantial disadvantage in comparison to persons who are not disabled;
2. Where a physical feature puts a disabled person at a substantial disadvantage in comparison to persons who are not disabled; and
3. Where a disabled person, without an aid, is put at a substantial disadvantage in comparison to persons who are not disabled.

Should an employer fail to make the reasonable adjustments for the disabled employee, they have breached their duty under Section 21 of the Act.

Ms C Merriman v (1) 1st Staff Ltd and Others

Ms Merriman had been engaged through an agency, 1st Staff Limited, to work as a tutor for an individual with special needs.

Ms Merriman later developed disabilities, which impacted her ability to attend her tutoring lessons at the individual’s home. Due to her disabilities, she requested adjustments to switch to online teaching as opposed to face-to-face lessons, which were refused.

She then brought a claim against the agency under sections 20 and 21 of the Act for failure to make reasonable adjustments. Similar claims were brought against four other respondents, all of whom were individuals working for the agency.

Employment Tribunal Decision

The Employment Tribunal allowed Ms Merriman’s claim against the agency. However, the claims against the other four respondents were struck out as having no prospects of success.

The Tribunal’s reasoning was because a claim for failure to make reasonable adjustments is an obligation that rests solely with the employer, and therefore the claim cannot be brought against individuals. Ms Merriman appealed to the EAT.

Appeal – EAT

The EAT rejected all but one ground of Ms Merriman’s grounds of appeal. Following the reasoning in Baldwin v Cleves School & Ors [2024] EAT 66, the EAT found that while the duty to make reasonable adjustments rests with the employer, a company can only act through its agents or employees.

On this basis, the EAT considered section 109 of the Act which maintains that anything done by an employee or agent in the course of their employment must be treated as also done by the employer (known as Vicarious Liability). Section 110 of the Act goes further to render an employee personally liable if certain conditions are met.

Rather interestingly, it was held that when an employee is found to have committed an act of discrimination for which an employer is vicariously liable under section 109, then the employee is equally liable under section 110.

Ms Merriman’s appeal therefore succeeded, and the EAT ordered for the second to fifth respondents to be rejoined as parties to the reasonable adjustments claim.

What does this decision mean in practice?

Employers should ensure they have sufficient processes in place for reasonable adjustment requests.

With liability also extending to individual employees in their personal capacities should a reasonable adjustments claim be brought, workplace training on dealing with reasonable adjustment requests should be implemented for line managers and employees involved in reviewing and granting requests.

The full Judgment can be found here.