Firstgroup Plc v Paulley

A bus operator’s reasonable-adjustment duty does not automatically require an absolute rule compelling every non-wheelchair user to leave a wheelchair space. Reasonableness is judged objectively by the practical result, having regard to effectiveness, practicability, cost, disruption and the impact on others. A policy requiring enforcement in every case may be unreasonable where the operator lacks reliable legal powers, would expose drivers to confrontation, or would require them to adjudicate competing claims. The duty may still require practical steps short of compulsion, but their precise content depends on the circumstances.

Mr Paulley, a wheelchair user, was unable to board a FirstGroup bus because the wheelchair space was occupied by a woman with a child in a pushchair who refused to move. The Leeds County Court found that FirstGroup’s policy of asking, but not requiring, non-wheelchair users to vacate the space was a provision, criterion or practice causing substantial disadvantage. It held that reasonable adjustments required a policy compelling such passengers to move and, if necessary, leave the bus, and awarded £5,500 damages. FirstGroup appealed. The central issue was whether the duty under the Equality Act 2010 required that absolute and enforceable policy.

1. Disposition. The appeal was allowed. All three judges agreed that the absolute policy ordered by the county court was not required by the reasonable-adjustment duty.
2. PCP and disadvantage. The relevant PCP was the notional, pre-adjustment practice of allowing passengers to use the wheelchair space on a first come first served basis. Underhill and Arden LJJ held that this placed wheelchair users at a substantial disadvantage because they could be unable to travel when a non-wheelchair user occupied the space, whereas non-wheelchair users could normally sit or stand elsewhere. Lewison LJ had reservations about whether the disadvantage was caused by the PCP rather than by bus design and the statutory duties imposed on drivers, but regarded the difference as immaterial to the outcome.
3. Anticipatory duty. The duty is anticipatory and is owed to disabled persons generally, assessed by reference to wheelchair users as a class rather than only to the individual claimant. The question whether a breach is in relation to a particular claimant is separate.
4. Reasonableness. The assessment is objective and focuses on the practical result of the proposed adjustment. Relevant considerations include effectiveness, practicability, financial and other cost, disruption, available resources, resources already spent and available assistance. Effectiveness is not a threshold requirement; it is weighed with cost and difficulty. The impact on other passengers is relevant, and the needs of wheelchair users do not automatically trump every competing consideration.
5. Enforcement. The Public Service Vehicles (Conduct of Drivers, Inspectors, Conductors and Passengers) Regulations 1990 impose duties on drivers but do not impose a general duty on passengers to vacate the space or give drivers a reliable power to remove them for refusing. Contractual conditions would not provide a practical solution and could expose drivers to confrontation, battery claims or unsafe self-help. An absolute rule would also require drivers to adjudicate competing claims and would be unworkable.
6. Further guidance. Arden LJ provisionally indicated that reasonable steps short of compulsion might include driver training, persuasion strategies, notices and awareness campaigns. The precise content of any such policy was not decided because the respondent advanced only the absolute compulsory policy.

1. Court of Appeal (Civil Division) — In [2014] EWCA Civ 1573, the appeal from the county court was allowed.
2. Leeds County Court — Recorder Isaacs held that FirstGroup’s policy breached the duty to make reasonable adjustments and awarded Mr Paulley £5,500 damages.