A recent decision of the Employment Appeal Tribunal (“EAT”) considers whether individuals involved in making decisions on reasonable adjustment requests can be personally liable. The Equality Act 2010 places the duty to make reasonable adjustments for disabled employees on the employer. However, personal liability can occur where the employee’s actions lead to the employer’s failure to make reasonable adjustments.
The claimant provided tutoring services through an agency under arrangements involving several organisations, including umbrella companies and service companies through which she was paid. Having developed a disability which affected her ability to attend the site where she provided tuition, the claimant requested to deliver tuition online. The request was declined due to the practical difficulties associated with online teaching.
The claimant brought a claim for failure to make reasonable adjustments against the agency and other relevant companies, together with four individual co-respondents who worked for the agency.
At a preliminary hearing, the Employment Tribunal considered whether the reasonable adjustments claim could proceed against the four individual co-respondents. The Employment Tribunal struck out the claims against the individual co-respondents, reasoning that individuals could not be liable for breach of a duty imposed on the employer. The claim against the agency was allowed to proceed. The claimant appealed against the strike out.
On appeal, the EAT held that the Tribunal had erred in striking out the failure to make reasonable adjustment claim against the four individual co-respondents. The EAT stated that although the primary duty to make reasonable adjustments rests with the employer or principal, it can “only act through its employees or agents”. An employee or agent may incur personal liability where their conduct results in the employer contravening the Equality Act 2010, notwithstanding that the duty to make reasonable adjustments itself rests with the employer. The EAT therefore set aside the strike out decision. The claims against the agency and the four individual co-respondents were remitted back to the Employment Tribunal for a full hearing.
For managers and HR teams, the decision underlines that involvement in determining a reasonable adjustment request may have personal consequences, as well as consequences for the employer. Employers should provide regular training to those responsible for handling such requests, so that they can recognise when the duty may be engaged and consider the request appropriately, obtaining medical advice where required. To help mitigate legal risk, where the proposed adjustment cannot be accommodated, the outcome should be communicated appropriately to the employee and alternative options should be considered and discussed.
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