Reasonable adjustments: managers may be personally liable

In a recent and significant Employment Appeal Tribunal (EAT) decision (Merriman v 1st Staff Limited and ors), it was held that responsibility for making reasonable adjustments to avoid a disabled person being significantly disadvantaged at work may not stop with the employer.

In some circumstances, individual managers or other persons involved with the decision may also be personally liable.

What did the EAT decide?

Ms Merriman was engaged through an agency as a tutor. After developing disabilities that affected her ability to attend in-person sessions, she requested adjustments which were not made.

The Employment Tribunal allowed her claim to proceed against the employer but struck it out against four individual employees against she whom she had also brought her claim, finding that the duty to make reasonable adjustments only fell on the employer.

On appeal to the EAT it was decided thar this approach was wrong because although the legal duty is imposed on the employer or principal, a company can only act through its employees and agents.

Where a manager’s act or omission results in the employer breaching that duty, sections 109 and 110 of the Equality Act 2010 may be engaged.

An individual may therefore be liable alongside the employer and a claimant may name the manager or other decision-maker who allegedly failed to make or implement the adjustment. That said, liability is not automatic. The claimant must still identify the relevant act or omission, establish the individual’s involvement and prove the claim.

In Merriman, the EAT decided only that the claims against the individuals should not have been struck out at that stage but it is the establishment of this principle that is so key.

Why does this matter for employers?

This case will mean that there will be much greater focus on how individual managers and other employees deal with adjustment requests from disabled employees. Those Claimants may also be more likely to identify and name the person responsible for making, delaying or implementing a decision, rather than pursuing the employer alone.

The risk may be particularly important for smaller and owner-managed businesses, where directors or senior managers often handle requests themselves without dedicated HR support.

Even if they believe they are acting solely for the company, being named as an individual respondent may expose them to personal liability, additional cost and pressure.

How should employers approach making reasonable adjustments?

Employers should treat adjustment requests as an active process rather than a one-off decision. The question is not simply whether the employee’s preferred adjustment can be agreed.

Managers should properly consider the information available, seek further evidence where necessary, discuss workable alternatives and keep arrangements under review as circumstances change.

Action points for employers making reasonable adjustments:

In light of this decision, employers should:

• Train managers: make sure those receiving and deciding requests understand the duty and the possibility of individual liability.
• Escalate decisions: involve HR or obtain appropriate advice before refusing an adjustment or allowing a request to drift.
• Keep records: document requests, medical or occupational health evidence, discussions, decisions and review dates.
• Consider alternatives: if the requested adjustment is not reasonable, explore other practical options and explain the outcome clearly.
• Review responsibility: ensure it is clear who owns the process and has authority to implement agreed measures.

The message for employers is clear: adjustment requests must be handled promptly, carefully and by managers who understand the potential consequences.

Getting the process wrong could expose both the business and the individual decision-maker to liability.

How can Morr & Co help?

If you have any questions or would like any further information on the contents of this article or assistance in reviewing your existing policies and procedures, please do not hesitate to contact our Employment team on 0333 038 9100 or email employmentEmail@morrlaw.com.

Or follow the link to find more about discrimination at work.

Disclaimer
Although correct at the time of publication, the contents of this newsletter/blog are intended for general information purposes only and shall not be deemed to be, or constitute, legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article. Please contact us for the latest legal position.