Yes. The Employment Appeal Tribunal (EAT) considered this in Merriman v 1st Staff Ltd and others.

The EAT held that, while the duty to make reasonable adjustments is imposed on the employer, a business can only act through its employees and agents. Where an employee’s conduct in the course of employment amounts to a breach of that duty, the employee may also be personally liable. That liability can arise even if the employer is able to show that it took all reasonable steps to prevent the conduct in question.

Background

Ms Merriman was engaged, through an agency arrangement involving 1st Staff, to tutor a person with special needs. She developed a disability which made it difficult for her to attend in person and asked to move to online teaching.

The Employment Tribunal allowed her claim against 1st Staff for failing to make reasonable adjustments to proceed but struck out the equivalent claims against four individuals who worked for 1st Staff, holding that a reasonable adjustments claim could only be brought against an employer, not against individual members of staff.

Tribunal and appeal decisions

The Employment Appeal Tribunal disagreed. It held that sections 109 and 110 of the Equality Act 2010 can apply to reasonable adjustments claims. Section 109 makes employers vicariously liable for unlawful acts carried out by employees or agents in the course of employment, while section 110 can make those employees or agents personally liable for acts that are treated as having been done by the employer.

The Employment Appeal Tribunal also drew support from paragraph 10.55 of the Employment Code. That paragraph makes clear that employees and agents may be personally liable for breaches of the Equality Act 2010 where the employer or principal is also liable. It also confirms that an employee may remain liable for their own conduct even where the employer establishes the reasonable steps defence. Similarly, an agent may be personally liable for unlawful acts carried out with the principal’s authority, although the principal may avoid liability if it can show that the agent was acting without that authority.

The EAT therefore remitted the case and reinstated the claims against the four individuals, finding that they could potentially be personally liable for the alleged failure to make reasonable adjustments.

Key takeaways

• Reasonable adjustment decisions need to be handled carefully because liability may not stop with the organisation; employees involved in the decision-making process may also be exposed.
• Employers should have clear internal processes for receiving, assessing and documenting reasonable adjustment requests.
• Decisions should be evidence-based and properly recorded, including what was requested, what was considered, why any adjustments were accepted or rejected, and whether alternatives were explored.

 How we can help

If you are responsible for handling reasonable adjustment requests, now is a good time to review whether your processes are clear, consistent and properly documented. If you would like advice on managing a request or reviewing your organisation’s approach, we’re here to help. Get in touch with Simon Shepherd at SimonShepherd@schofieldsweeney.co.uk.