FirstGroup Plc v Paulley

A bus operator’s duty to make reasonable adjustments for wheelchair users is not satisfied by a policy under which the driver merely requests an unreasonably obstructive passenger to vacate the wheelchair space and then does nothing more. The driver should be required to take reasonable further steps, having regard to the passenger’s reasons, available space, timing and other circumstances. Those steps may include treating the request as a requirement and briefly delaying departure to encourage compliance.

The duty does not require an absolute policy compelling every non-wheelchair user to vacate the space or leave the bus. Such a policy could operate unfairly, cause confrontation and disrupt other passengers. Damages require a real prospect that the omitted adjustment would have avoided the claimant’s disadvantage.

A wheelchair user was unable to board a bus because its designated wheelchair space was occupied by a passenger with a child in a pushchair. The driver asked her to move, but took no further action after she refused. The wheelchair user brought disability discrimination proceedings, alleging that the operator had failed to make reasonable adjustments under the Equality Act 2010.

The Recorder upheld the claim and awarded £5,500. The Court of Appeal allowed the operator’s appeal: [2014] EWCA Civ 1573; [2015] 1 WLR 3384. Before the Supreme Court it was no longer disputed that the operator’s first-come-first-served policy placed wheelchair users at a substantial disadvantage. The central questions were what further steps were reasonably required and whether the damages award could stand.

1. Disposition. The appeal was allowed to a limited extent. Lord Neuberger, Lord Toulson and Lord Reed held that the operator’s policy failed to require sufficient further action after an initial request was refused. Lord Sumption agreed with the disposition despite misgivings. Lady Hale, Lord Kerr and Lord Clarke agreed that the operator was in breach but would also have restored the damages. The majority declined to restore them.

2. No absolute requirement to vacate or leave. An adjustment requiring every non-wheelchair user to vacate the space, and if necessary the bus, was not reasonable. A passenger might have a disability, infirmity, responsibility for infants or another compelling need. Mandatory enforcement could create confrontation, delay and unfairness to third parties. Practicability and disruption were relevant under paragraph 7.30 of the applicable Code of Practice. The earlier transport regulations did not prevent the Equality Act 2010 from requiring additional adjustments, but neither did they establish an absolute priority enforceable by ejection.

3. Further reasonable steps. Per Lord Neuberger and Lord Toulson, a policy under which the driver merely asked the occupier to move and invariably did nothing after refusal did not comply with the reasonable-adjustment duty. The driver should assess whether the occupier could readily and reasonably move elsewhere. If the refusal appeared reasonable, further pressure would not normally be required. If it appeared unreasonable, the driver should go as far as reasonably appropriate to induce reconsideration. Depending on the circumstances, the driver could express the request as a requirement and consider briefly delaying departure. The policy need not prescribe an inflexible response or require physical enforcement.

4. Notice. Lord Neuberger did not find the existing notice unlawfully weak. Its polite wording could still convey priority, and the evidence indicated that customer-friendly notices could be more effective. Lord Kerr and Lady Hale considered that a clearer and firmer notice was itself a reasonable adjustment.

5. Causation and remedy. A claimant seeking damages had to show at least a real prospect that the omitted adjustment would have avoided the disadvantage. The Recorder had made no finding that a firmer request or temporary delay would probably have caused the particular passenger to move, and the factual account that her pushchair did not fold had not been appealed. The damages award therefore could not be sustained. Lady Hale, Lord Kerr and Lord Clarke dissented on that issue and would have restored the Recorder’s order.

1. United Kingdom Supreme Court: The appeal was allowed to the limited extent that the operator should have maintained a policy requiring reasonable further steps after an unreasonable refusal. The damages award was not restored: [2017] UKSC 4.
2. Court of Appeal: The operator’s appeal was allowed unanimously, although the judges differed on whether the policy caused substantial disadvantage: [2014] EWCA Civ 1573; [2015] 1 WLR 3384.
3. Leeds County Court: Recorder Isaacs found unlawful discrimination and awarded the claimant £5,500 damages.