Employment: drafting problem on knowledge and reasonable adjustments

This page deals with the some drafting problems in the Equality Act 2010 related to the 'lack of knowledge' defence for employers regarding the duty to make reasonable adjustments. For main discussion of this defence, see Reasonable adjustment rules: Employer's knowledge - defence.

Note: this page covers the Equality Act 2010 position from 1st October 2010. See also pre-Equality Act position and Which Act applies: Equality Act or DDA?

There are two drafting problems with this 'lack of knowledge' defence for reasonable adjustments in Equality Act 2010:

Existing employees

On the face of it, the "any other case" limb in EqA Sch 8 para 20(1)(b), applies other than in the case of a job applicant, mainly where an existing employee requires reasonable adjustments in relation to the job. It would give the employer a defence where he does not know and could not reasonably be expected to know of the existing employee's disability or substantial disadvantage.

However, that limb is expressed to apply "in any other case referred to in this Part of this Schedule", namely Part 3. Part 3 of Schedule 8 only refers to applicants and potential applicants. So on the face of it the second limb refers to nothing at all.

Accordingly, employers will not have this defence in relation to existing employees unless (as is possible) the tribunals are willing to correct the drafting on the basis that the provision is unworkable and evidently intended to refer to Part 2 rather than Part 3. (Cf Ignorance of a disability by Philip Thornton, New Law Journal, November 2010).

It may be possible for an employer to argue that even without the 'lack of knowledge' defence it is not reasonable for it to have to make an adjustment if it could not reasonably have been expected to know of the disability, or of the substantial disadvantage. However, this is not clear. If it were the case, why is the 'lack of knowledge' defence there in the first place?

Applicants or potential applicants

Turning to job applicants or potential applicants, one would expect the defence in EqA Sch 8 para 20(1)(b) (lack of knowledge of the disability or substantial disadvantage) to apply to job applicants as well as to existing employees. However, on the clear wording, it does not. Para 20(1)(a) applies "in the case of an applicant or potential applicant" and para 20(1)(b) applies only "in any other case...".

It would seem odd for lack of knowledge of the disability or substantial disadvantage not to be a defence in relation to reasonable adjustments for job applicants. In particular, it would be a change from position under the previous DDA, probably unintended. However, the provision as drafted (using the word "other") is workable and clear, and it would seem very difficult for tribunals to interpret para 20(1)(b) as extending to job applicants. A statutory amendment might well be required to do that.

What tribunals may perhaps be able to do is interpret EqA Sch 8 para 20(1)(a) on job applicants ("does not know, and could not reasonably be expected to know... that an interested disabled person is or may be an applicant for the work in question") as incorporating a defence if the employer did not know s/he was a "disabled person", as well as the more obvious meaning of providing a defence if they were not known to be an applicant. The defence would not extend to lack of knowledge of substantial disadvantage. Even as regards knowledge of disability, is this interpretation of para 20(1)(a) legitimate given that para 20(1)(b) on existing employees specifically includes the words 'has a disability' while para 20(1)(a) on job applicants does not?

Top

Employment: drafting problem on knowledge and reasonable adjustments

Existing employees

Applicants or potential applicants

Employment menu

Main pages:

Features

Types of discrimination:

Who is covered:

Disputes & liability:

Related areas

Before 1st October: