Reasonable Adjustments: EAT Decision on Personal Liability in Reasonable Adjustment Claims
A decision handed down by the Employment Appeal Tribunal (EAT) has expanded the scope of personal liability in reasonable adjustments claims. The case of Merriman v 1st Staff Ltd and Others involves claims made by an employee regarding reasonable adjustments and a decision made by the EAT that individuals involved in decision-making can be found personally liable. This decision is likely to be important for HR professionals, managers, and those involved in making decisions regarding reasonable adjustments.
The facts of this case, as far as it relates to the decision of the EAT here, is that Ms Merriman was employed by an agency to provide tutoring services to an individual with developmental difficulties. When Ms Merriman’s own disabilities worsened, adjustments were requested which, she believed, would assist her to continue working. This included, among others, permitting her to conduct sessions remotely rather than in person.
A review of the suggested adjustments raised concerns around the practical aspects of remote tutoring for an individual with learning difficulties. It also raised concerns regarding the funding involved. The substance of whether the adjustments were reasonable was not in question in this decision and remains to be decided by the Employment Tribunal in due course. Ms Merriman filed her claim against the company for an alleged failure to make reasonable adjustments and named a number of individual respondents who were fellow employees.
At a preliminary hearing, the Tribunal allowed the adjustments claims to proceed against the company but struck out the claims against the individual respondents. The Tribunal found that a failure to make reasonable adjustments could not be pursued against an individual as the duty to make said adjustments rests with the employer.
The EAT disagreed. It found that while a statutory duty is imposed on the employer, a company does not make decisions independently and must rely on the actions of its agents – their employees. Where a decision made by an employee causes a breach of the Equality Act, the relevant sections regarding personal liability may also be applied, as is possible for other forms of discrimination.
As a result, an employee who makes a decision on behalf of their employer regarding a reasonable adjustments request may find themselves personally named in Employment Tribunal proceedings and jointly liable for any awards made.
This case highlights the importance of two aspects of the decision-making process when considering whether an adjustment is reasonable in the circumstances for an employer. These are:
- Management training
- Record keeping.
Ensuring that managers understand the relevant sections of the Equality Act when making decisions relating to reasonable adjustments will help to ensure that an objective assessment takes places which considers any relevant medical evidence. Regular training on disability discrimination and adjustments should reduce the risk of these claims.
Management training should include ensuring that a clear and straightforward mechanism exists for raising concerns or complex cases to HR. Giving managers confidence to make decisions but also providing support when appropriate will also reduce the chances that management make snap decisions that may later result in uncomfortable Tribunal scrutiny.
Relying on contemporaneous documents is also crucial. A paper trail of options considered, management discussions, and reasoning all help with ensuring than a fair assessment takes place. There should also be evidence that those involved considered the adjustments in good faith. It is much easier to rely on notes made at the time than it is to justify a decision after the fact.
Attending, and being subject to, Employment Tribunal proceedings, in reality, is likely to be a stressful and time-consuming process for the individuals involved. This can create further fractures amongst staff should they not feel supported by the business in the decisions they have made. Effective training and support not only manage risk but also provide safeguards against wider commercial issues.
While this case highlights personal liability for individuals involved in the decision-making process, the overall process remains the same. Where possible and reasonable, early engagement with requests, objective assessment of the adjustments, and consideration of a variety of options will not only assist in defending adjustments claims, but it may prevent them from being brought altogether.
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