In FirstGroup Plc v Paulley, the Supreme Court has decided that bus drivers may have to do more to accommodate wheelchair users than simply request that other passengers move from a wheelchair space when it is required. However, it was not in a position to give clear guidance as to how far a driver's obligations extend. Ultimately, as is often the case with disability discrimination law, the assessment of what a driver should do comes down to what is 'reasonable'. This can be very difficult for a business to assess given the relatively limited amount of case law on reasonable adjustments in a service provision context and the fact specific nature of the concept of reasonableness.
This case, which has attracted significant press interest, concerned the lawfulness of a bus company's policy in relation to use of the space provided for wheelchair users on its buses. In line with any provider of a service (and in particular organisations providing public services) FirstGroup owes a duty to make reasonable adjustments for service users with disabilities where those users are put at a disadvantage as a result of a policy or physical feature. The wheelchair space on buses is part of the bus company's method of satisfying this duty.
In 2012, the space on FirstGroup's buses had a sign next to it stating "Please give up this space for a wheelchair user". When Mr Paulley boarded a FirstGroup bus, a woman with a sleeping child in a pushchair was in the space and refused to move when the driver asked her to. Mr Paulley had to wait for the next bus. Mr Paulley issued a disability discrimination claim and alleged FirstGroup had failed in its duty to make reasonable adjustments to its policy. He alleged that the driver should have done more to get the customer to move. A County Court found in favour of Mr Paulley and awarded him £5,500 compensation. FirstGroup appealed and were successful at the Court of Appeal, which held it was not reasonable to require FirstGroup to adjust its policy so that drivers had to require non-wheelchair users to give up the space when it was needed by someone in a wheelchair and then to remove the passenger from the bus if they refused to move. Mr Paulley then appealed to the Supreme Court, where his appeal has been partially upheld.
The Supreme Court held that FirstGroup's policy requiring a driver to request a non-wheelchair user to vacate the space without taking any further steps did not go far enough. Where a refusal to move is unreasonable, the driver should consider some further step to pressurise the non-wheelchair user to give up the space, depending on the circumstances. The Supreme Court gave the examples of rephrasing the request as a requirement or refusing to drive on until the non-wheelchair user moved. However, the Court agreed that a policy that required a non-wheelchair user to be ordered off a bus would be unreasonable. By a slim majority (4-3), the damages award was not upheld by the Supreme Court on the grounds that, had the driver been more forceful, it was not possible to tell whether Mr Paulley would still have been put at a disadvantage (in other words he may still have suffered the same degree of upset had FirstGroup complied with its obligations).
This has always been a complex and sensitive case. That is because it deals with the tension between the rights of disabled service users; the impact on other service users of potential reasonable adjustments; and an understandable desire of service providers for their employees not to be put at risk by getting involved in a confrontation with service users who are unwilling to comply with a request. In that respect, it is perhaps no surprise that the Supreme Court's decision is one that it is unlikely that either party would be fully happy with.
The precise steps that are reasonable for a driver to take will depend on the circumstances and may depend on another passenger's reasons for not moving (and potentially that passenger's behaviour). However, what is clear is that a driver will need to go beyond a single request to a customer taking up the wheelchair space.
Given the outcome of this case, bus operators (and other transport providers) should review their policies in relation to wheelchair spaces and similar assistance provided to disabled uses to ensure it is potentially compliant with the law (if they have not already done so as a result of the previous stages of the case). It would obviously be important to make sure that any changes in policy are then communicated to drivers and other relevant employees. It is unfortunate that the Supreme Court failed to provide any clear guidance as to what a driver must do where a non-wheelchair user refuses to give up the space but this is understandable given that the law in this area always comes down to an assessment of reasonableness. At least one of the Supreme Court Judges commented that the differences of opinion between them could suggest a need for parliament to look further at the law on this topic.
The case is also a useful reminder for service providers more widely of the duty to make reasonable adjustments for disabled service users.