Last Wednesday, the Supreme Court handed down judgment in the case of FirstGroup Plc v Paulley UKSC 4. This case is widely considered to be one of the most notable judgments relating to the treatment of people with a disability in recent years. What was the case about and what was at stake?
On 24 February 2012, Mr Doug Paulley, who is disabled and uses a wheelchair, attempted to board a public bus traveling from Wetherby to Leeds. The bus (operated by a subsidiary of the First Group) was fitted with a dedicated space in which wheelchairs can be positioned and is marked with a notice that reads: “Please give up this space if needed for a wheelchair user.”
Unfortunately, on attempting to board the bus, Mr Paulley discovered that the wheelchair space was already occupied by a woman with a sleeping child in a pushchair. The bus driver asked the woman to fold up her push chair and leave the wheelchair space, but she refused. As the bus driver was unable to persuade the woman to move, Mr Paulley was not able to travel and had to wait for the next bus.
Mr Paulley was deeply aggrieved by this course of events and started a claim against First for disability discrimination. Mr Paulley argued that more should have been done to persuade the woman to vacate the wheelchair space and that First’s policy in respect of this was inadequate.
The Equality Act 2010 seeks to prevent discrimination of persons on the grounds of certain “protected characteristics”. One of these protected characteristics is disability. S20 Equality Act places a duty upon those who provide a service to the public to make “reasonable adjustments” to ensure that a person with a disability is not disadvantaged when seeking to use those services.
Mr Paulley’s argument was, that by not compelling the woman on the bus to leave the wheelchair space (allowing him to travel), First had failed to make the necessary “reasonable adjustments” and therefore had discriminated against him.
The Court Case
Mr Paulley was successful in the County Court. The Court found that First’s policy of asking, rather than requiring, non-disabled passengers to leave the wheelchair space was inadequate. The bus driver should have placed much more pressure on the woman to move, ordering her to leave the bus if necessary. Mr Paulley’s claim succeeded and he was awarded damages of £5,500. First were not satisfied with the outcome and appealed.
The Court of Appeal disagreed with the County Court and set aside its judgment. It decided that it would not be reasonable to expect First to require non-disabled passengers to vacate the wheelchair space. It said that such an obligation would put too great a burden on First and its bus drivers. Further, it could potentially unfairly disadvantage passengers with delay should a dispute with a particularly difficult passenger escalate. Naturally, Mr Paulley was not satisfied with the reversal of his previous success and appealed to the Supreme Court.
The Supreme Court’s Decision
The Supreme Court reversed the decision of the Court of Appeal in part. Their lordships found that First’s policy was inadequate and that more should have been done to put pressure on the woman to leave the wheelchair space. They decided that where a passenger refuses a driver’s request to vacate a wheelchair space, the driver should assess the situation and decide whether the refusal is unreasonable. If the driver concludes that the refusal is unreasonable, then the driver should apply increasing pressure to the passenger. The Court held that it would not be appropriate for the driver to eject a passenger from a bus. However, it might be appropriate for the driver to go as far as refusing to move the bus for a few minutes to put pressure on the difficult passenger.
Their lordships did however refuse to reinstate Mr Paulley’s award of damages. This was because Mr Paulley could not prove that the woman in the wheelchair space would definitely have moved, had the bus driver been firmer with her.
This case is without question very important. Not only does it have a direct effect on First (clearly, they will have to update their policy on this issue now) it will also have a knock-on effect for all public service providers who will have to assess their relevant policies. Although the case will undoubtedly be seen as a success for those fighting for the rights of disabled people, the decision is not immune to criticism.
The first, and most glaring, problem with this decision is that the practical examples of what a bus company would need to do to avoid breaching their obligations are, frankly, inadequate. This will create uncertainty and potentially open the floodgates to a storm of litigation while the practical implications of the judgment are “tested”.
The decision may also be seen to put too much pressure on bus drivers, to resolve disputes concerning such issues. There is little practical guidance given to the drivers who will now have to decide whether a refusal to move is unreasonable. Is it really practical to expect a person who is not legally trained to make a decision that involves balancing very difficult legal concepts? Has the Supreme Court justices just set a test that will in practical terms be impossible to satisfy and therefore issued a blank cheque to anyone who feels aggrieved at the decision of a bus driver?