FirstGroup v Paulley [2017] UKSC 4

Doug Paulley is a wheelchair user who attempted to board a bus operated by a subsidiary of FirstGroup PLC on 24th February 2012. The bus had a space marked by a wheelchair sign and a notice saying:

“Please give up this space for a wheelchair user” (“the Notice”).

At the time Mr Paulley attempted to board, a woman with a sleeping child in a pushchair occupied this space. She was asked by the driver to fold down the chair and move; however, she refused, stating that it did not fold down. Mr Paulley had to wait for the next bus, and as a result he missed a connecting train and a pre-arranged lunch appointment with his parents. Mr Paulley brought proceedings against FirstGroup PLC as bus operators for unlawful discrimination on the ground of his disability, claiming that FirstGroup had failed to make “reasonable adjustments” to its policies contrary to section 29(2) of the Equality Act 2010.

At first instance

The Recorder concluded that FirstGroup operated a “policy… of ‘first come first served’… whereby a non-wheelchair user occupying the space on the bus would be requested to move, but if the request was refused nothing more would be done.” This placed Mr Paulley and other wheelchair users at a substantial disadvantage by comparison with non-disabled passengers. The Recorder held that there were reasonable adjustments that FirstGroup could have made to eliminate the disadvantage:

  • altering the Notice positively to require non-disabled passengers occupying a space to move if a wheelchair user needed it; and
  • adopting an enforcement policy requiring non-disabled passengers to leave the bus if they failed to comply.

The Recorder found in favour of Mr Paulley and awarded him £5,500 damages. FirstGroup appealed the decision. The policy of "require rather than request" suggested by the Court, clearly had significant public policy implications.

The Court of Appeal unanimously held that it was not reasonable to hold that FirstGroup should adjust its policy so that its drivers should require rather than request non-wheelchair users to vacate a space when it was needed by a person in a wheelchair, and then to positively enforce that requirement with the ultimate sanction of being removed from the bus. Consequently, the decision at first instance was overruled. Mr Paulley was granted permission to appeal to the Supreme Court.

The Supreme Court unanimously allowed Mr Paulley's appeal and upheld the first instance decision that bus companies should implement a "require not request" policy - albeit to a limited extent.

The lead judgment of Lord Neuberger allowed the appeal but only to the extent that FirstGroup’s policy requiring a driver to simply request a non-wheelchair user to vacate the space, without taking any further steps, was unjustified. He went on to state that where a driver who has made such a request concludes that a refusal is unreasonable, he or she should consider some further step to pressurise the non-wheelchair user to vacate the space, depending on the circumstances. This very subjective approach of what a driver should do in any number of particular circumstances places a difficult duty on bus operators on how to approach such situations.

Lord Neuberger conceded that there may be a variety of different circumstances in which a non-wheelchair user refuses to vacate a space which is needed by a wheelchair user. He sought to give guidance as to the appropriate approach of the driver, which he said could depend on:

  • the reason for the refusal, including, in particular, the needs of the non-wheelchair user
  • the surrounding circumstances, including whether the bus is full or has vacant places, whether the bus is on time, and the frequency of the service; and (possibly)
  • the character of the driver.

He recommended “a policy … to encourage drivers to go as far as they thought appropriate in the circumstances and use their best endeavours to attempt to move recalcitrant passengers".

In terms of practical application, Lord Neuberger stated as follows:

"….where there is some other place on the bus to which a non-wheelchair user could move, I cannot see why a driver should not be expected to rephrase any polite request as a requirement, and, if that does not work and especially if the bus is ahead of schedule, why the driver should not be expected to consider whether there was any reason why the bus should not stop for a few minutes with a view to pressurising or shaming the recalcitrant non-wheelchair user to move."

The Court confirmed that there was no deep gulf between the requirements pursuant to the Equality Act and a policy such as the one expressed in the terms of the FirstGroup policy. Their only concern was that some practical step should be taken to go further than simply asking a passenger to move, and accepting their refusal to do so, however unreasonable that might be.

The Court indicated that the main issue to be considered is of good practice, in at least repeating the request to move, perhaps in more forceful terms, particularly if there are clearly other spaces that the passenger could use. They urged drivers to show a degree of initiative to attempt to resolve the issue, hopefully to the benefit of all users.

However, the Court did indicate that there may well be circumstances in which it was reasonable for a passenger to fail to vacate the disabled area and further, where it would be entirely reasonable for a driver not to apply any added pressure.

In terms of the wording of the Notice displayed, the Supreme Court did not consider that FirstGroup was in breach of its duty by failing to re-word the Notice more aggressively. The Notice did require, rather than merely request, a non-wheelchair user to vacate the space if it was needed by a wheelchair user. The addition of the word “Please” at best made it more polite and at worst softened the requirement, but the Court were unenthusiastic and doubtful about the effect of positively re-wording notices to say that failure to move "would be enforced".

The Judgment's stated intention is to remove some of the grey areas in order to assist bus operators and drivers in relation to the steps that could be considered to be both reasonable and good practice, pursuant to the Equality Act. Nonetheless, the somewhat subjective approach that is to be adopted by drivers according to the many different circumstances which they may encounter, and what constitutes good practice, are to be considered on an individual basis. This may understandably give rise to uncertainty for bus operators.

The Judgment is being hailed as a significant victory by Disability Rights Groups. However, it is certainly aimed at providing a common sense approach and the Court has clearly been at pains to attempt to provide practical examples of the steps that drivers should take to ensure that non wheelchair users are suitably challenged to vacate a space if it is required by a disabled passenger.

The public policy issue was one of balancing the needs of all users as against the wording of the Equality Act. This legislation has previously come under scrutiny by Disability Rights Groups for having major flaws around its potential for enforcement. It appears that the members of the Supreme Court have done their best to preserve the status quo.

The Minister for Disabled People, Work and Health, Penny Mordaunt, welcomed the decision stating that she would be talking to the Department for Transport about clarity, good practice and the powers of transport providers to ensure the ruling becomes a reality.

Further guidance as to the practical steps that Public Service Transport Operators should take is likely to follow. It is clear from the Supreme Court's ruling that a Notice such as the one displayed by FirstGroup will be sufficient written notification. However, the wider issue of suitable training to be given to drivers and policies and procedures to be put in place will need to be carefully considered.

This decision is likely to have wider implications for the public transport industry beyond Bus Operators, and in particular Train and Tram Operators will need to review the decision carefully. However, the implications may also extend to disabled access and seating in public areas generally, and could go so far as to affect shops, restaurants, theatres, libraries and providers of other shared public facilities.