Watch out – there’s a failure to adjust about

In Merriman v 1st Staff Ltd and Ors, the EAT has held that an employee can be individually liable for a failure to make reasonable adjustments in disability discrimination cases (s20/21 EqA 2010).

This case arose out of a claim for reasonable adjustments by a disabled tutor working with special needs pupils. The Claimant needed adjustments to be able to carry on working but these were not forthcoming either from the employer or his colleagues. The Claimant originally claimed against the employer and four employees who she said were involved in the failure to make the adjustments. The claims against the individual employees were struck out on grounds that the liability could only attach to the employer.

The EAT disagreed on the basis that if a breach arises from an individual employee’s failure to act then liability can attach to that employee. Baldwin v Cleves School 2024 ICR 1001 and paragraph 10.55 of the Equality and Human Rights Commission’s Statutory Code of Practice on Employment (2011), supports this conclusion.

Paragraph 10.55 of the Code states: ‘Employees and agents may be personally liable for breaches of the [EqA 2010] where the employer or principal is also liable.’  The above scenario can only work if there is a s.21 (reasonable adjustments claim) & s.109 claim (vicarious liability of the employer) and a specific employee has been directly involved in the failure to make adjustments. Although the duty under s.20 of the Equality Act 2010 is imposed on an employer or principal, the EAT held that a company can only act through its agents or employees. Where an act is carried out by an employee, which amounts to a breach of the duty to make reasonable adjustments, such that the employer is liable, then the employee is equally liable under S.110 EqA 2010. Employees may be left holding the baby where the employer is able to rely successfully on the “reasonable steps” defence to escape their own vicarious liability.