Failure to make reasonable adjustments – what you need to know

It has long been established that an employee can bring a claim against their employer if they believe their employer has failed to comply with the duty to make reasonable adjustments for them.

That duty has always sat with the employer, despite the fact that it is managers and HR professionals who make the decisions on behalf of the employer.

However, a recent Employment Appeal Tribunal decision has now confirmed that an individual can be held personally liable for failing to make reasonable adjustments.

What are reasonable adjustments?

Employers are under a duty to make reasonable adjustments to help disabled job applicants and employees. The duty arises where a disabled person is placed at a substantial disadvantage by a provision, criterion or practice, a physical feature of the employer’s premises or an employer’s failure to provide an auxiliary aid.

All reasonable adjustments are circumstance specific, but some examples include:

• Adjusting working hours
• Amending job duties or role
• Providing specialist equipment for the employee, or
• Modifying a workplace policy, such as a grievance or disciplinary procedure.

Discussions regarding what adjustments are required will often arise at the outset of the employment relationship, following a period of absence or when raised informally by an employee to their manager. It is therefore often managers and HR teams that will be discussing what adjustments are reasonable with the employee to ensure the employer’s duty to make reasonable adjustments is being discharged.

Merriman v 1st Staff Ltd

Following the recent case of Merriman v 1st Staff Ltd and others, the Employment Appeal Tribunal confirmed that a failure to make reasonable adjustments claim can be brought against the individuals who made the decisions on behalf of the employer.

In this case, Ms Merriman brought a claim against her employer (an agency) and some employees of the agency individually for failing to allow her to move her in-person tutoring sessions online.

Ms Merriman said that she could not teach the in-person sessions anymore, due to her disability, so brought a claim for failure to make reasonable adjustments.

The Employment Tribunal did not allow the claim to be brought against the individuals, on the basis that a failure to make reasonable adjustments claim could only be brought against the employer. However this decision was overturned by the Employment Appeal Tribunal, and the claim was permitted to proceed against both the employer and the individuals.

The Employment Appeal Tribunal decided that the responsibility to make reasonable adjustments lies with the employer but, ultimately, a business can only act through its agents or employees. Therefore, those individuals can be personally liable for a failure to make reasonable adjustments too.

While this isn’t the only type of discrimination claim that can lead to personal liability, it does widen the likelihood of managers and HR professionals being included as an individual respondent in claims.

What this means for you

The key takeaway from this judgment is that any individual within your organisation who is involved in the decision-making process for reasonable adjustments can be held personally liable.

We anticipate more claims for failure to make reasonable adjustments to be brought against the employer and individual respondents, such as managers and HR professionals.

In light of this decision, we would recommend:

• All managers/senior staff receive up to date training on disability discrimination, and are made aware of their potential personal liability;
• All reasonable adjustments requests are reviewed promptly, with medical advice obtained as necessary to help establish what adjustments may be appropriate;
• Keep a watertight record of all decisions (including rationale behind these) and any alternatives considered/offered to the employee;
• Ensure to get HR involvement in difficult or complex reasonable adjustment cases; and
• Speaking with us as soon as possible if you receive a claim from an individual that is brought against both the employer and individual respondents.