Paulley v First Group plc

The Court of Appeal considered whether a bus operator's policy of asking (but not requiring) non-wheelchair users to vacate the designated wheelchair space amounted to a PCP (provision, criterion or practice) which put wheelchair users at a substantial disadvantage for the purposes of the duty to make reasonable adjustments under section 20 of the Equality Act 2010. The court accepted that the notional pre-adjustment PCP of allowing the wheelchair space on a first-come first-served basis put wheelchair users at a substantial disadvantage.

However the court held that the adjustments open to the operator did not reasonably extend to a policy that would compel non-wheelchair users to leave the vehicle on pain of removal. Regulation 12 of the Conduct Regulations places duties on drivers, not on passengers, and the regulatory and practical framework does not give drivers a reliable, lawful or safe power to enforce compulsory removal. Consequently the judge at first instance was wrong to endorse a mandatory, non-discretionary rule requiring passengers to vacate the wheelchair space and to leave the bus if they refused.

Background and facts:

• Mr Doug Paulley, a wheelchair user, was refused carriage on a FirstGroup bus on 24 February 2012 because the wheelchair space was occupied by a woman with a sleeping child in a pushchair who would not move. The driver asked her to move but took no further enforcement steps. Mr Paulley waited for the next bus, missed a train and claimed loss. At first instance Recorder Isaacs found for Mr Paulley and awarded £5,500.
• FirstGroup's policy at the time invited non-wheelchair passengers to give up the wheelchair space but expressly stated that drivers had no power to compel passengers to move; the company later adjusted wording but maintained that drivers could not enforce removal.

Nature of the claim and relief sought: Mr Paulley sued for unlawful discrimination arising from a failure to make reasonable adjustments under section 20 of the Equality Act 2010. He sought a declaration and awarded damages reflecting the finding that the operator had failed to make reasonable adjustments.

Procedural posture: The claim succeeded in Leeds County Court before Recorder Isaacs. FirstGroup appealed to the Court of Appeal. A parallel case (Black v Arriva) reached a different first instance conclusion but its appeal was withdrawn.

Issues framed by the court:

• What is the correct description of the PCP for present purposes?
• Whether that PCP put wheelchair users at a substantial disadvantage compared with non-wheelchair users.
• If so, whether FirstGroup ought reasonably to have made further adjustments, specifically a policy requiring non-wheelchair users to vacate the wheelchair space and letting drivers enforce non-compliance.

Court's reasoning and outcome: The Court of Appeal agreed that the notional pre-adjustment PCP is a first-come first-served approach for use of the wheelchair space and that this can put wheelchair users at a substantial disadvantage. The appeal focussed on the content of the reasonable adjustment required. The court held that requiring drivers to enforce compulsory removal would be impractical and unsafe: regulation 12 of the Public Service Vehicles (Conduct) Regulations 1990 imposes duties on drivers but not on passengers and does not provide a reliable power to compel passengers to leave; contractual remedies are impractical to enforce in the street; and creating an absolute, non-discretionary rule would produce unworkable intrusions on other passengers and expose drivers to confrontation and legal risk. The court therefore allowed the appeal, concluding that the operator's policy of requesting passengers to move (supplemented in practice by signage, persuasion and driver training) did not breach the statutory duty to make reasonable adjustments by falling short of a compulsory removal regime.

Subsidiary findings and observations: The court emphasised the relevance of the Conduct Regulations, government guidance and the Code of Practice in assessing reasonableness; noted the practical difficulty of drivers adjudicating competing claims to the space; and suggested that further non-coercive measures (training, awareness campaigns, design changes) are matters for operators or Parliament rather than the court imposing a compulsory removal rule.

Appeal allowed. The Court of Appeal held that although a notional pre-adjustment PCP of allowing the wheelchair space on a first-come first-served basis can put wheelchair users at a substantial disadvantage, it was not reasonable to require the bus operator to adopt a policy compelling non-wheelchair users to vacate the wheelchair space and to authorise drivers to enforce removal. Practical, legal and safety constraints (including the limits of the Conduct Regulations and lack of effective enforcement mechanisms) meant the mandatory rule endorsed by the trial judge was unworkable and unreasonable as an adjustment under section 20 of the Equality Act 2010.

Appeal from Leeds County Court (Recorder Isaacs, 2YL85558). At first instance Recorder Isaacs found for the claimant (award £5,500). The County Court decision was appealed to the Court of Appeal, which allowed FirstGroup's appeal. A contemporaneous case, Black and Others v Arriva North East Ltd (HHJ Bowers, Middlesbrough County Court, 1 May 2013), reached a different first instance result but its appeal was withdrawn and is not live in this court.