Supreme Court considers reasonable adjustments under the Equality Act 2010

Mr Paulley, a wheelchair user, was unable to board a bus because the wheelchair space was occupied by a woman with a sleeping child in a pushchair who refused to comply with the driver's request to move. The bus operator's policy was that other customers would be asked to move from the wheelchair space to accommodate a wheelchair user, but that if they refused the wheelchair user would not be permitted to board.

Mr Paulley claimed that the bus operator had discriminated against him on the grounds of his disability. The bus operator's policy was "provision, criterion or practice" which placed Mr Paulley at a substantial disadvantage by comparison with non-disabled bus passengers and the bus operator had failed to take reasonable steps to avoid that disadvantage.

At first instance the recorder agreed with Mr Pauley, finding that the reasonable steps which the bus operator should have taken to eliminate the disadvantage to disabled bus passengers were an alteration to the conditions of carriage which would require a non-disabled passenger occupying a wheelchair space to move from it if a wheelchair user needed it; coupled with an enforcement policy which would require non-disabled passengers to leave the bus if they refused to comply.

The Court of Appeal unanimously allowed the bus operator's appeal, finding that it had not discriminated against Mr Pauley and that it was both unfair and impractical to require the operator to adjust its policy so that its drivers were to require, rather than simply to request, non-wheelchair users to vacate a space needed by a wheelchair user, and then positively to enforce that requirement, with the ultimate sanction being removal of the recalcitrant passenger from the bus.

The Supreme Court allowed Mr Pauley's appeal.

Lord Neuberger, who gave the lead judgment (and with whom Lord Reed agreed), considered that the recorder's decision effectively required the operator to adopt a policy that could lead to a non-wheelchair user being ordered from the bus. He held that the Court of Appeal had been right to reject this. An absolute rule that a non-wheelchair user must vacate the space if it was required by a wheelchair user would be unreasonable and enforcement of such a rule, whether absolute or qualified (meaning that a non-wheelchair user must vacate the space if it was reasonable to do so), would be likely to lead to confrontation and delay. Nor was it clear that there was any statutory obligation on a passenger to comply with a policy relating to the use of the space or that they should leave the bus if ordered to do so by the driver for failing to relinquish the space to the wheelchair user.

Lord Neuberger also rejected the argument that the notice used by the operator, which said "Please give up this space for a wheelchair user" (the Notice), was inadequate. The operator could not be criticised for not having expressed the Notice in more forceful terms. The Notice amounted to a requirement rather than simply a request, albeit it was politely expressed. Additionally, there was evidence that "directive" notices were less effective than less confrontational notices and the use of specially emphatic language ought not be determinative of legal liability. Lord Neuberger rejected the submission that the Notice should have made it clear that the priority of wheelchair users would be enforced, given that such a statement would be incorrect.

However, Lord Neuberger accepted that it was not sufficient for the operator to instruct its drivers simply to request non-wheelchair users to vacate the space and then do nothing further if the request was refused. Where the driver concluded that the non-wheelchair user's refusal to vacate the space was unreasonable, it would not be justifiable for a bus-operating company to have a policy that did not require some further step from the driver in any circumstances. In particular, a driver could be expected to rephrase any polite request as a requirement and, if that did not work and the bus was ahead of schedule, the driver should stop the bus with a view to pressuring the non-wheelchair user to give way.

Lord Toulson agreed that there were reasonable steps that an operator could take beyond simply requesting the non-wheelchair user to move. The driver could make it plain that this was a requirement even if securing compliance might depend upon the exercise of moral pressure. Lord Sumption agreed with this approach, albeit with reservations, considering that there was no ideal solution in a case like this, simply degrees of unsatisfactory ones.

Their Lordships divided on whether damages should be awarded to Mr Paulley, the majority holding that an award of damages was not justified in this case.

The overturning of the Court of Appeal decision and the divisions of opinion within the Supreme Court illustrate that this case was far from straightforward, prompting a comment from Lord Toulson that this may be an area of law that would benefit from fresh legislative consideration. The ruling falls short of requiring bus operators to remove non-wheelchair users who unreasonably refuse to vacate a space for a wheelchair user, but does require them to instruct their drivers to do more than simply request that they vacate the space. Drivers will have to determine how to proceed depending on the particular circumstances, including in some cases stopping the bus to remonstrate with the recalcitrant passenger.

The judgment may be of wider application than simply bus operators. Other transport and service providers, for example, train companies and car parks, should review their policies to consider whether they are taking sufficient steps to require non-wheelchair users to cede designated wheelchair spaces to wheelchair users. They will need to train relevant staff on how to enforce their policy.

FirstGroup Plc v Paulley [2017] UKSC 4, 18 January 2017, Lord Neuberger, Lady Hale, Lord Kerr, Lord Clarke, Lord Sumption, Lord Reed and Lord Toulson (Bailii).