Out-Law News 3 min. read
24 Jan 2017, 11:48 am
The Supreme Court did not go so far as to find that a passenger with a buggy had to be compelled to vacate a space on a bus allocated to a wheelchair, and disagreed with a tribunal's conclusions that wheelchair user Doug Paulley was entitled to damages for being unable to board a FirstGroup bus in 2012. However, the duty in the Equality Act to make 'reasonable adjustments' for disabled service users required drivers "to do a bit more, when appropriate, if and when an initial request is not complied with", the court ruled.
Paulley had attempted to board a bus to Leeds at Wetherby bus station, West Yorkshire, in February 2012. However, the space allocated for wheelchairs on the bus was occupied by a woman with a sleeping child in a pushchair. The driver asked the woman to fold down the pushchair and move out of the space but the woman refused, saying that the pushchair did not fold down. Paulley was therefore denied boarding, as there was no other space on the bus where his wheelchair could be safely secured.
The 2010 Equality Act prohibits those providing services to the public from discriminating against people on the ground of certain 'protected characteristics', including disability. Service providers also have a duty to make 'reasonable adjustments' where any of their practices could put disabled people at a 'substantial disadvantage' compared to those who are not disabled.
All seven Supreme Court judges found that an "absolute rule" that any non-wheelchair user be required to vacate the space if required by a wheelchair user would not be reasonable; and that "mandatory enforcement" of either an absolute or qualified rule by drivers "would be likely to lead to problems on some occasions". However, FirstGroup's policy that drivers need not take a request to move further was "unjustifiable", Lord Neuberger said.
"A driver may form the view that a non-wheelchair user is reasonable in refusing to move from the space," he said. "If the driver considers that that is so, or even probably so, then it would not, at least normally, be unreasonable for any request to move not to be taken further. However, where the driver concludes that the non-wheelchair user's refusal is unreasonable, it seems to me that it would be unjustifiable for a bus-operating company to have a policy which does not require some further step of the bus driver in any circumstances."
"In particular, 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 pressuring or shaming the recalcitrant non-wheelchair user to move," he said.
However, this was as far as the court could go, the judge said. It was "not difficult to conceive of circumstances in which it could be unreasonable to expect a non-wheelchair user to vacate a space and, even more, to get off the bus even though the space is needed by a wheelchair user", he said.
"At least as a general rule, the law should not normally seek to sanction or otherwise deal with lawful but inconsiderate behaviour, and, similarly, it should not normally enforce basic standards of decency and courtesy," he said. "However, we are here concerned with a statute whose purpose is to ensure, within limits, that behaviour is curbed when it results in discrimination."
The tribunal judge who first heard Paulley's case had awarded him £5,500 in damages. However, as this award was based on his view "as to what FirstGroup's policy should have been" it was not upheld by the Supreme Court. The tribunal had made no finding as to whether Paulley would have been disadvantaged had the company adjusted its policies in line with the Supreme Court's decision, meaning that a damaged award was "unwarranted", the Supreme Court said.