First Group plc v Doug Paulley

The Court of Appeal held that in order to answer this question, rather than focusing on the existing policy which is being challenged (as many legal advisers do) (i.e. in this case asking, but not compelling non-wheelchair users to vacate the wheelchair space on a bus), instead the correct legal approach is to identify the base position or raw policy, with any adjustments that have already been made to the policy to accommodate disabled persons being stripped out.  The base policy which should have been challenged in this case by Mr Paulley should have been First Group’s “first come first served” policy with regards to use of the wheelchair space on its buses.

Courts must have regard to the Equality Act 2010 Code of Practice: Services, Public Functions and Associations published by the Equality & Human Rights Commission when deciding what constitutes a reasonable adjustment. Some of the non-exhaustive factors which should be taken into account include the following:

  • Whether taking any particular steps would be effective in overcoming the substantial disadvantage that disabled people face in accessing the services;
  • The extent to which it is practicable for the service provider to take the steps;
  • The financial and other costs of making the adjustment;
  • The extent of any disruption which taking the steps would cause;
  • The extent of the service provider’s financial and other resources;
  • The amount of any resources already spent making adjustments; and
  • The availability of financial or other assistance.

Applying these factors to the case, the Court of Appeal found that a rule requiring a wheelchair space on a bus to be vacated would be ineffective, as it could not be enforced under the criminal law and it would be impractical to introduce it as a condition of carriage. It could also cause disproportionate disruption to other passengers. Further, giving the bus driver discretion as to when to require passengers to vacate the wheelchair space would be unworkable. Drivers would potentially have to adjudicate between competing claims to the wheelchair space and bus drivers are not equipped or trained to make these decisions and it would be unreasonable, and possibly dangerous to require a bus driver to do so.

As an amusing aside, the Court had to consider the Conduct Regulations which govern the conduct of bus drivers and their passengers. A passenger who breaches the Conduct Regulations can be removed by the driver or the police. An example of a breach of the Conduct Regulations would be if a passenger refused to remove or relocate a bulky or cumbersome article when requested to do so by the driver. As to whether a refusal to move a pram with a sleeping baby in it would contravene the requirement to comply with the driver’s request to remove a bulky or cumbersome article, Lewison LJ stated that “whilst a pram might be a bulky or cumbersome article, the child in it would certainly not be!”.