FirstGroup Plc v Paulley

The Supreme Court considered whether a bus operator's policy of making the wheelchair space available on a "first come, first served" basis and merely requesting (rather than requiring or enforcing) other passengers to vacate it amounted to a failure to make reasonable adjustments under the Equality Act 2010 (in particular section 20(3) and the duty in section 29). The court accepted that the respondent's policy was a provision, criterion or practice which put wheelchair users at a substantial disadvantage compared with non-disabled passengers.

The court rejected the recorder's most prescriptive formulation that the operator must adopt an absolute policy of "require and, if necessary, enforce" (including ejecting passengers from the bus). Instead the court held that reasonable adjustments could require a bus operator to adopt clearer and more effective measures short of forcible ejection: more emphatic notices where appropriate and a policy requiring drivers to use their best endeavours (including rephrasing a request as a requirement, further persuasion and, where practicable, brief delay) to secure vacating of the wheelchair space when a non-wheelchair user could readily and reasonably move elsewhere.

Background and facts:

• On 24 February 2012 Mr Paulley, a wheelchair user, was unable to board a FirstGroup bus because the designated wheelchair space was occupied by a woman with a pushchair. The driver asked her to move; she said the pushchair did not fold and refused. The driver declined Mr Paulley permission to fold his wheelchair into a passenger seat for safety reasons. Mr Paulley missed a train and claimed unlawful discrimination.

Nature of the claim and procedural history:

• Mr Paulley sued FirstGroup in the Leeds County Court alleging a failure to make reasonable adjustments under the Equality Act 2010 (section 20(3) read with section 29) to a provision, criterion or practice (PCP) that placed wheelchair users at a substantial disadvantage. Recorder Isaacs found for Mr Paulley and awarded damages. The Court of Appeal allowed FirstGroup's appeal. The case then came to the Supreme Court on the question whether FirstGroup had failed to make reasonable adjustments.

Issues framed by the court:

• Whether the operator's PCP put wheelchair users at a substantial disadvantage (not disputed on appeal).
• Whether reasonable adjustments were available and, if so, whether the adjustments pleaded by Mr Paulley were reasonable: (a) a primary contention for a policy of requiring and enforcing vacating of the space (including removal from the bus if necessary); (b) an alternative, less aggressive contention that notices and driver instructions should be more prescriptive and drivers should use greater efforts ("require and pressurise").

Court's reasoning and disposition:

• The court unanimously rejected the recorder's primary contention that a bus company must have a policy requiring forcible ejection of a passenger who refused to vacate the wheelchair space. The majority concluded that an absolute or mandatorily enforced rule would be unreasonable and impracticable in many circumstances (for example where it would be unreasonable to expect an occupier to move or where enforcement would provoke confrontation or undue disruption) and that the Conduct Regulations and accessibility rules did not mandate forcible ejection.
• However, the court held that reasonable adjustments can go beyond a mere initial polite request. In particular, a bus company should train and require drivers to take further steps in appropriate cases: rephrase a failed polite request as a requirement, use further persuasion, consider brief delay to secure compliance, and generally to use best endeavours where a non-wheelchair user could "readily and reasonably" move elsewhere. The court accepted that notices phrased as clear requirements would be legitimate in principle but declined to order peremptory wording in this case given evidence about the operator's chosen communications and the lack of a factual finding that a firmer notice would have made a difference in the incident.
• Because the Court of Appeal's allowance of FirstGroup's appeal removed the recorder's award and there was no finding that the less extreme adjustments would have altered the outcome in this case, the recorder's damages were not sustained. The Supreme Court allowed the appeal only to the limited extent of clarifying what reasonable adjustments operators should make (i.e. require drivers to use best endeavours) rather than endorsing the recorder's draconian enforcement remedy.

Appeal allowed in part. The Supreme Court rejected the recorder's order that operators must adopt a policy of "require and enforce" which could lead to forcible ejection, concluding that such an absolute rule would often be unreasonable or impracticable. The Court held that reasonable adjustments may require a bus operator to adopt clearer notices and, importantly, to require drivers to use their best endeavours (including rephrasing a request as a requirement, further persuasion and brief delay where practicable) to secure vacating of the wheelchair space where a non-wheelchair user could readily and reasonably move elsewhere. The respondent's damages award could not be sustained on the findings in the case.

Claim heard at first instance by Recorder Isaacs in Leeds County Court (finding for claimant and awarding damages). FirstGroup appealed to the Court of Appeal which allowed the appeal ([2015] 1 WLR 3384; appeal from [2014] EWCA Civ 1573). The claimant appealed to the Supreme Court ([2017] UKSC 4).