Philip Thornton considers some unfortunate drafting in the Equality Act 2010
Where a breach of the duty to make reasonable adjustments is alleged, an employer has always had a defence where it would be unreasonable to expect it to know that any adjustments might be required. That defence originally worked (under the Disability Discrimination Act 1995 (DDA 1995)) by disapplying the duty in two situations:
- applicants for employment: where the employer does not know, and could not reasonably be expected to know that the relevant disabled person is, or may be, an applicant for the employment;
- in any case: where the employer does not know, and could not reasonably be expected to know that the person has a disability and is likely to be placed at a substantial disadvantage by any of the employer's “arrangements” or the physical features of its premises.
Although the first exception, regarding applicants for employment, has been re-enacted successfully without major change under the Equality Act 2010, the revised wording of the second exception, regarding lack of knowledge of the disability and its effects, contains both a drafting
