Introduction
If an employee is disabled, an employer has a duty to make reasonable adjustments where a provision, criterion or practice, a physical feature, or the absence of an auxiliary aid, puts them at a substantial disadvantage in comparison with individuals who are not disabled.
In Merriman v 1st Staff Ltd and others the EAT (Employment Appeal Tribunal) has held that claims for a failure to make reasonable adjustments can be brought against individual employees and agents, and that liability does not solely rest with employers. This is an important decision that could have a significant impact on those who are responsible for decision making in organisations, such as HR professionals and managers.
We explore the case in more detail below.
So what happened in this case?
Ms Merriman was engaged through an agency arrangement to work as a tutor. Ms Merriman developed disabilities which directly impacted her ability to attend her in person tutoring sessions. As a result, she requested a number of adjustments, which included moving the sessions online. When this was not accommodated, Mrs Merriman proceeded to bring claims for a failure to make reasonable adjustments against the agency, 1st Staff Limited and various individuals, who worked for the agency.
The ET (Employment Tribunal) only allowed the claim against 1st Staff to proceed, holding that a reasonable adjustments claim can only be brought against an employer. The EAT overturned this decision and allowed the appeal.
The EAT held that the duty to make reasonable adjustments does rest on the employer, but a business can only act through its agents or employees. Where an employee's conduct in the course of employment breaches that duty, the employee can be personally liable too.
This is significant decision. The EAT has made it clear that there is the potential for all individuals involved in the decision-making relating to the requirement to make reasonable adjustments for disabled employees to be held individually liable for those decisions.
Following this decision, it will be important to ensure that:
- managers have received up to date training on disability discrimination and when the duty to make reasonable adjustments applies, including informing them of their potential personal liability;
- requests for workplace adjustments are escalated promptly and appropriately, with HR being involved at an early stage;
- decisions are properly documented, including outlining alternatives which were considered and the reasons for accepting or rejecting adjustments.
Hannah Ball comments:
Following the decision in Merriman, employees may seek to join multiple respondents when bringing an ET claim for failure to make reasonable adjustments, which will cause proceedings to become more complex. It is key that managers understand the duty to make reasonable adjustments and that robust processes are in place to handle requests for adjustments.
If you would like advice on managing reasonable adjustment requests, training managers on disability discrimination obligations, or reviewing your organisation's policies and procedures, please contact a member of the Howes Percival Employment Team.
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