Dear Colleagues,
You would remember this unique case of a wheelchair user Mr. Doug Paulley who approached the court after he was told he could not get on a bus to Leeds in 2012 when a mother with a pushchair refused to move. Mr. Paulley had argued that operator FirstGroup's "requesting, not requiring" policy was discriminatory.
Brief of the Case
The appeal concerns the lawfulness of a bus company’s policy in relation to the use of the space
provided for wheelchair users on its buses. Mr Paulley is a wheelchair user who attempted to board a
bus operated by a subsidiary of FirstGroup PLC on 24th February 2012.
The bus had a space marked
by a wheelchair sign and a notice saying, “Please give up this space for a wheelchair user” (“the
Notice”). At the time Mr Paulley attempted to board, a woman with a sleeping child in a pushchair
occupied this space. She was asked by the driver to fold down the chair and move; however, she
refused, stating that it did not fold down. Mr Paulley had to wait for the next bus as a result.
Mr Paulley issued proceedings against FirstGroup for unlawful discrimination on the ground of his
disability, claiming that FirstGroup had failed to make “reasonable adjustments” to its policies contrary
to section 29(2) of the Equality Act 2010. The Recorder found that FirstGroup operated a “provision
criterion or practice” (“PCP”) consisting of a “policy… of ‘first come first served’… whereby a non-wheelchair
user occupying the space on the bus would be requested to move, but if the request was
refused nothing more would be done.” This placed Mr Paulley and other wheelchair users at a
substantial disadvantage by comparison with non-disabled passengers.
There were reasonable
adjustments that FirstGroup could have made to eliminate the disadvantage:
(i) altering the Notice
positively to require non-disabled passengers occupying a space to move if a wheelchair user needed it;
and
(ii) adopting an enforcement policy requiring non-disabled passengers to leave the bus if they
failed to comply.
The Recorder found in favour of Mr Paulley and awarded him £5,500 damages. However, FirstGroup went in appeal before the Court of Appeal which unanimously allowed the appeal and held that it was not
reasonable to hold that FirstGroup should adjust its policy so that its drivers required, rather than
requested, non-wheelchair users to vacate a space when it was needed by a person in a wheelchair, and
then to positively enforce that requirement with the ultimate sanction being removal from the bus.
Mr. Paulley, went in appeal to UK Supreme Court against the impugned order.
Judgement of Supreme Court
To read the judgement dated 18 Jan 2017 of The Supreme Court of the United Kingdom in FirstGroup Plc (Respondent) v Paulley (Appellant) [2017] UKSC 4, click here.
The Supreme Court unanimously allowed Mr Paulley’s appeal, albeit only to a limited extent.
Lord Neuberger gave the lead judgment (with which Lord Reed agreed) allowing the appeal but only
to the extent that FirstGroup’s policy requiring a driver to simply request a non-wheelchair user to
vacate the space without taking any further steps was unjustified.
Where a driver who has made such a
request concludes that a refusal is unreasonable, he or she should consider some further step to
pressurize the non-wheelchair user to vacate the space, depending on the circumstances. Lord Toulson
and Lord Sumption write concurring judgments. On the issue of the order to be made, this majority
declines to uphold an award of damages. Lady Hale, Lord Kerr and Lord Clarke also allow the appeal
but they would have restored the order of the Recorder in full, including upholding the award of
damages.
Reasons for the Decision
[References in square brackets are to paragraphs in the judgment]
Under section 29 of the 2010 Act, as a “public service provider”, FirstGroup must not discriminate
against a person requiring its services by not providing the person with the service, and it must make
“reasonable adjustments” to avoid substantial disadvantage to disabled persons [20-26].
The Recorder’s judgment effectively required a policy that could lead to a non-wheelchair user being
ordered off the bus [40-45]. The Court of Appeal was right to reject this. An absolute rule that any
non-wheelchair user must vacate the space would be unreasonable: there are many circumstances in
which it could be unreasonable to expect a non-wheelchair user to vacate a space, and even more, to
get off the bus, even where the space is needed by a wheelchair user [46-48].
Even a qualified rule (i.e.
that any non-wheelchair user must vacate if it is reasonable) implemented through mandatory
enforcement would be likely to lead to confrontation with other passengers (not least where the non-wheelchair
user vacating the space affected other travellers) and delay [50-51]. Passengers are not
clearly subject to a statutory obligation to comply with a policy relating to the use of the space, and
would not appear to be under such an obligation to get off the bus if they fail to do so [52].
Even though the hearing in the Court of Appeal had proceeded on the basis that it was not part of Mr
Paulley’s case [59], the argument that FirstGroup’s PCP should have gone further than it did, albeit
not as far as the Recorder concluded, has more force. FirstGroup cannot be criticised for choosing not
to express the Notice in more forceful terms: it was aimed at politely requiring non-wheelchair users to
vacate the space; there was evidence that “directive” notices are a less effective means of
communication with the public; and the use of specially emphatic language should not determine legal
liability in this case [63].
The suggestion that the Notice should state that priority of wheelchair users
“would be enforced” would be false [64]. However, it was not enough for FirstGroup to instruct its
drivers simply to request non-wheelchair users to vacate the space and do nothing further if the
request was rejected. The approach of the driver must depend upon the circumstances, but where he
or she concludes that the refusal is unreasonable, some further step to pressurise the non-wheelchair
user to move should be considered, such as rephrasing the request as a requirement (especially where
the non-wheelchair user could move elsewhere in the bus) or even a refusal to drive on for several
minutes [67].
Lord Toulson agrees [83-85] adding that fresh legislative consideration is desirable [87].
Lord Sumption also agrees albeit with reservations [92].
So far as damages are concerned, Lord Neuberger (with whom Lords Sumption, Reed and Toulson
agree) concludes that the Recorder did not specifically consider whether, if FirstGroup had simply
required its drivers to be more forceful, there was a prospect that it would have made a difference in
this case. It is therefore not possible to conclude that there would have been a real prospect that such
an adjustment would have resulted in Mr Paulley not being placed in the disadvantage that he was, and
so an award of damages is not possible [60-61].
Lady Hale, Lord Kerr and Lord Clarke dissent in part.
As the Recorder found, it was reasonable to
expect bus operators to do more than FirstGroup did [102-109]. His judgment did not necessarily
require ejection of a passenger who refused to move from the bus nor did it create an absolute rule
[106]; [129-131]; [137]. Had the practice suggested by the claimant been in force, there was at least a
real prospect that Mr Paulley would likely have been able to travel [108]; [138]. This being so, it was
unjust to deny Mr Paulley damages [109]; [160].
[References in square brackets are to paragraphs in the judgment]