The Equality Act 2010 provides that, where an employee commits an act of discrimination for which an employer is vicariously liable under s109, the individual employee may also be held personally liable under section 110.
Background
The claimant in Merriman v 1st Staff Limited & Ors was engaged via an agency arrangement as a tutor. During the course of her employment, she developed disabilities that made it difficult for her to continue tutoring in person. She requested a number of adjustments, including the ability to provide tutoring remotely through online platforms rather than travelling to the home of a student for face-to-face sessions.
The adjustments were not implemented. The claimant brought a number of claims under the Equality Act 2010, including claims for a failure to make reasonable adjustments. She brought these claims against both 1st Staff Ltd and several individual employees who had been involved in decisions concerning her requests for adjustments. At a preliminary stage of the proceedings, the employment tribunal allowed the failure to make reasonable adjustments claims to proceed against the employer. However, it struck out the claims brought against the individual employees as having no reasonable prospect of success. The tribunal concluded that the duty to make reasonable adjustments rests with the employer and so could not be enforced directly against individual employees. The claimant appealed.
Employment Appeal Tribunal ("EAT") judgment
The EAT held that the employment tribunal had erred in concluding that reasonable adjustment claims could not be brought against individuals. It emphasised that organisations can only act through their employees and agents. Where the conduct of an employee acting in the course of their employment amounts to a breach of the duty to make reasonable adjustments, the provisions of sections 109 and 110 of the Equality Act 2010 may operate so that both the employer and the individual can be liable. The appeal therefore succeeded and the individual employees were rejoined to the claim for failure to make reasonable adjustments.
What does this mean for employers?
The practical implications of this judgment are significant. We can expect to see more HR professionals, line managers and other decision-makers being named personally as respondents in employment tribunal proceedings. For the individuals involved, this means that, as well as having their decisions scrutinised by an employment tribunal, there is the possibility of being found personally liable. Where employer and employee are held liable for the same discriminatory act, they are jointly and severally liable. This means that the claimant may recover the full amount of any compensation awarded from either the employer or the individual employee. In practice, claims are usually pursued primarily against the employer, but the risk remains.
For employers, the decision reinforces the importance of ensuring that managers are trained to recognise disability issues, assess requests for reasonable adjustments carefully and document decision-making. This should include not only a record of what decision was made, but also the reasons why a particular decision was made and what alternatives were considered. Training should be updated regularly, and anyone involved in reasonable adjustment requests should be made aware of the potential for personal liability. Managers should also recognise when they need support with a decision and seek support early, be that from internal HR or external sources.
