Employers will be familiar with their duty to make reasonable adjustments for disabled employees and job applicants under the Equality Act 2010 (the “EqA 2010”). While the duty to make reasonable adjustments is an employer duty, the EqA 2010 provides that employers can be vicariously liable for the actions of their employees.

In Merriman v 1st Staff Ltd and others [2026] EAT 128, the Employment Appeal Tribunal (EAT) considered whether an individual can be liable for a failure to make reasonable adjustments. 

Discrimination and vicarious liability under the EqA 2010

The EqA 2010 states that: 

• The duty to make reasonable adjustments ‘applies to an employer’, and that an employer’s failure to comply with this duty is a form of discrimination. 
• An employer can be vicariously liable for anything done by an employee in the course of their employment. However, an employer can avoid liability if it can show that it took “all reasonable steps” to prevent the employee from doing a discriminatory act.  
• Where an employer is held to be vicariously liable for an employee’s discriminatory acts, an employee can also be personally liable for these acts. This personal liability can arise even where an employer has successfully advanced an “all reasonable steps defence” – meaning that an individual can potentially be liable for acts of discrimination, but the employer won’t be vicariously liable for their actions. 

This issue of individuals’ liability for a failure to make reasonable adjustments was considered by the EAT in Merriman.  

Background facts

Ms Merriman (“M”) was engaged through 1st Staff Ltd (“1st Staff”) to work as a tutor for an individual with special needs. M developed disabilities which made it difficult to tutor the individual on site and sought reasonable adjustments, including online rather than face to face teaching. This gave rise to practical difficulties, including the potential need for a care worker to be present with the individual during the tutoring sessions.

M brought claims for failure to make reasonable adjustments against 1st Staff and a number of individual respondents. At a preliminary hearing, the Employment Tribunal (“ET”) allowed M’s claim against 1st Staff to proceed, but struck out her claims against the individual respondents, finding that a failure to make reasonable adjustments claim could not be brought against individuals, as “the obligation to make adjustments rests with the employer”. 

M appealed to the EAT. 

The EAT’s decision

The EAT allowed the appeal, finding that it was an error of law to strike out the reasonable adjustments claims against the individual respondents. The EAT found that: 

• While the duty to make reasonable adjustments is imposed on employers, employers can only act through their employees or agents. 
• Where an employer is found vicariously liable for an employee’s discriminatory acts, the issue of whether the employee is personally liable for their acts may also be engaged. There is no discretion for a tribunal to decline to find an employee liable under the EqA 2010 where the relevant provisions are satisfied, with it irrelevant whether the employer succeeds or fails in a reasonable steps defence. 
• While not a definitive statement of the law, paragraph 10.55 of the EHRC Employment Code of Practice (the “Code”) provided support for this analysis. 

This decision clarifies that where an employee is held to have committed an act of discrimination for which an employer is vicariously liable, the employee is equally liable.

So what for employers?

While the decision does not make every individual personally liable whenever an adjustment is not implemented, the EAT has clarified that there is potential for individuals involved in decisions relating to reasonable adjustments to be held individually liable for those decisions. While this is not a departure from the position set out in the Code, the decision will be of interest to decision makers within employers (e.g. HR teams and managers), who have considered reasonable adjustments to be an employer-led decision.

In light of the decision, employers should consider the issues below:  

• Decision makers should be appropriately trained and decisions properly documented: Employers should ensure that individuals who are responsible for adjustment requests have received appropriate training and that evidence of decision-making processes preserved to identify and defend alleged acts of discrimination by individual decision makers. 
• Increase of individual respondents in ET claims: The decision seems likely to result in claimants adding individuals involved in alleged failures to make reasonable adjustments as respondents to ET claims. Employers should be aware of this when responding to claims, especially if they wish to run an “all reasonable steps” defence – which will likely create a conflict of interest between the employer and the individual.  
• s110(3) EqA – a way for individuals to avoid liability?: Individuals may seek to defend any failure to make reasonable adjustments claim by relying on s110(3) EqA 2010 – that the individual has acted in reasonable reliance on a statement by their employer that their actions would not contravene the EqA 2010. 

The EAT’s decision may lead to an increase in decision makers asking employers to provide a statement pursuant to s110(3) EqA 2010 prior to delivering a decision on an adjustment request. If this is something you would like to discuss further, or require advice on, we would be delighted to hear from you. Please do not hesitate to get in touch with our employment law team.