EAT puts individual decision-makers back into a disabled tutor's adjustments claim

The test the EAT described is contribution. Where an employee's actions contribute to a failure to comply, the employer and the individual could both be liable, the EAT held, because employers can only act through employees and agents ^[7]. Applying that to these facts will not be simple. Responsibility for funding Ms Merriman's work shifted between the NHS and a local authority, and a complex series of umbrella and service companies surrounded her employment ^[5]. The EAT reasoned that the decision on her continuing employment arguably rested with the funding bodies and not with the intermediaries through which she delivered her services, the employer included ^[6]. The report does not say which individuals were re-added or what roles they held.

The legal route to a named individual is discretionary. Judge Barklem referred to an earlier EAT decision, Baldwin v Cleves School. That case confirmed that a tribunal may, at its discretion, hold an individual personally liable when section 110 of the Equality Act has not been satisfied ^[8]. The EAT did not restore every individual. A number of the respondents were re-added, but not all ^[9].

Clare Walsh, a senior associate at Winckworth Sherwood, pointed to a second effect inside the employer's own defence ^[10]. "The decision also creates a potential conflict between employers and individual respondents," she said ^[12]. We'd expect that conflict to surface where an employer's best defence is that a particular manager acted outside policy, because that manager then has a defence of their own to run.

That sets up a choice for this quarter, and in our view it is a trade between speed and exposure. Leaving adjustment decisions with line managers keeps them close to the employee and spreads personal exposure across many people. Moving them to a small panel narrows who can be named and adds a step before the employee hears an answer.

Walsh was direct about the individual's position. "HR professionals and managers should assume that their actions, decisions and delays may be scrutinised individually in tribunal proceedings," she said ^[14]. The case now returns to the tribunal ^[9], and we'd expect the contribution test to be applied there to the individuals who remain in the claim.