FirstGroup Plc v Paulley [2017] UKSC 4

Mr Paulley, a wheelchair user, was prevented from boarding a FirstGroup bus because a woman with a sleeping child in a pushchair refused to vacate the wheelchair space. The Supreme Court held FirstGroup's 'first come, first served' policy with mere requests breached the duty to make reasonable adjustments under the Equality Act 2010, but declined to award damages.

Facts

On 24 February 2012, Mr Doug Paulley, a wheelchair user, attempted to board a FirstGroup bus at Wetherby bus station to travel to Leeds, intending to connect with a train to Stalybridge to meet his parents for lunch. The wheelchair space on the bus was occupied by a woman with a sleeping child in a pushchair. The driver, Mr Britcliffe, asked her to fold down the pushchair and move, but she said the pushchair did not fold down and refused to move. Mr Paulley was unable to board, had to wait for the next bus 20 minutes later, and missed his train, arriving at Stalybridge an hour late.

FirstGroup’s policy at the relevant time provided that wheelchairs did not have priority over buggies; other passengers were merely asked to move, and if they refused, the wheelchair user would have to wait. The bus displayed a notice stating:

Please give up this space for a wheelchair user

Mr Paulley issued proceedings in the Leeds County Court alleging unlawful disability discrimination through failure to make reasonable adjustments under section 29(2) of the Equality Act 2010. Recorder Isaacs found in his favour and awarded £5,500 damages. The Court of Appeal allowed FirstGroup’s appeal.

Issues

The central issue was whether FirstGroup’s provision, criterion or practice (PCP) of operating its wheelchair space on a ‘first come, first served’ basis, requesting but not requiring non-wheelchair users to vacate the space, complied with the duty to make reasonable adjustments under sections 20 and 29(7) of the Equality Act 2010, Schedule 2. The Court had to determine what adjustments FirstGroup could reasonably have been expected to make.

Arguments

Appellant (Mr Paulley)

Mr Paulley contended that FirstGroup should have adopted a policy of ‘require and if necessary enforce’, meaning drivers should require, rather than merely request, non-wheelchair users to vacate the space, and enforce this by ejecting the passenger from the bus where necessary. Alternatively, FirstGroup should have used more prescriptive notices and instructed drivers to take further steps such as refusing to drive on until the space was vacated.

Respondent (FirstGroup)

FirstGroup argued that its policy was based on customer research suggesting more friendly, non-confrontational notices were more effective. It contended that requiring drivers to enforce vacation of the space would be impractical, unfair to other passengers (who may have had reasonable grounds to refuse), and risked confrontation. There was no statutory power to compel passengers to move.

Judgment

The Supreme Court unanimously allowed the appeal, but only to a limited extent, and declined to restore the damages award. The majority (Lord Neuberger, Lord Toulson, Lord Sumption, Lord Reed) held that:

Rejection of the ‘require and enforce’ policy

An absolute rule requiring non-wheelchair users to vacate the space, and if necessary the bus, would not be reasonable. Many passengers might have legitimate reasons to remain (other disabilities, accompanying infants, vulnerability). Enforcement would risk confrontation and possibly violence. There is no statutory obligation on passengers to vacate, in contrast to the Conduct Regulations dealing with anti-social behaviour, which provide enforcement mechanisms including police assistance.

Acceptance of a ‘require and pressurise’ policy

However, it was not enough simply to request non-wheelchair users to move and do nothing further if refused. Lord Neuberger held that where a driver concludes a refusal is unreasonable, the policy should require some further step. Drivers should be expected to rephrase polite requests as requirements and, where appropriate, consider stopping the bus for a few minutes to pressurise the recalcitrant passenger. Lord Toulson agreed that bus companies should train staff to make clear that passengers who could reasonably and readily move must do so.

Damages

The majority declined to award damages because there was no finding by the Recorder that, had the alternative adjustment been made, there was a real prospect Mr Paulley would not have suffered the disadvantage. The driver’s evidence that the woman said her pushchair did not fold down had not been challenged.

Dissenting views

Lady Hale, Lord Kerr and Lord Clarke considered the Recorder’s order, including the damages award, should be restored. They construed the Recorder’s judgment as not requiring forcible ejection and considered that a clear policy requiring (not merely requesting) passengers to move would likely have resulted in the woman moving. Lord Kerr also considered that refusing to move could amount to an offence under regulation 6(1)(b) of the Conduct Regulations (unreasonably impeding another passenger).

Implications

The decision clarifies the duty of reasonable adjustment under the Equality Act 2010 in the context of public transport for wheelchair users. Bus operators cannot satisfy their duty merely by requesting non-wheelchair users to vacate wheelchair spaces; they must train drivers to take further reasonable steps, which may include rephrasing requests as requirements and, in appropriate circumstances, declining to drive on for a short period to apply pressure.

The judgment recognises the practical and legal limits of what bus companies can be expected to do. The Court declined to impose an absolute rule mandating ejection of non-compliant passengers, recognising the variety of competing interests and the absence of statutory enforcement powers. Lord Sumption noted the law cannot enforce basic decency and courtesy, and Lord Toulson suggested fresh legislative consideration may be desirable.

The decision is significant for service providers generally in demonstrating that reasonable adjustments require proactive steps beyond passive accommodation, but that what is ‘reasonable’ takes into account practicability, the interests of third parties, and the absence of supporting enforcement mechanisms. The case is also notable procedurally for the Court’s willingness to address an alternative case not pursued in the Court of Appeal in order to provide guidance, while declining to award damages where the factual findings did not support causation.

Verdict: Appeal allowed to a limited extent. The Supreme Court held that FirstGroup’s policy failed to comply with the duty to make reasonable adjustments under the Equality Act 2010 because it did not require drivers to take further steps beyond a mere request where a non-wheelchair user unreasonably refused to vacate the wheelchair space. However, the Court declined to restore the £5,500 damages award made by the Recorder, as there was no finding that the adjustment the Court considered appropriate would have made a difference on the facts.

Source: FirstGroup Plc v Paulley [2017] UKSC 4