Case Comment: Paulley v FirstGroup plc  UKSC 4
10 Friday Feb 2017
Most buses have spaces reserved for wheelchair users these days. However, sometimes, wheelchair users are unable to board because another passenger – a parent with a pushchair, perhaps – refuses to make way. The Supreme Court has now confirmed that, in such circumstances, bus drivers must make an assessment as to whether it is reasonable to expect that passenger to move and, if so, put pressure on them to do so.
The case turned on the facts, and it is important and interesting for those facts. However, it also addresses a point of wider significance: namely, the extent to which persons who have obligations under the Equality Act 2010 (“the EA”) to make “reasonable adjustments” for disabled people must seek to influence the behaviour of third parties who do not.
Mr Paulley is a wheelchair user. He sought to board a bus operated by FirstGroup. The bus had a space for wheelchair users and a notice which said: “Please give up this space if needed for a wheelchair user”. FirstGroup’s policy was that wheelchair users had priority in the use of this space and that bus drivers should ask other passengers to move, but that the driver had no power of compulsion. However, a mother with a child asleep in a pushchair refused to move, claiming that she could not fold the pushchair. Mr Paulley was accordingly unable to board.
The main issue
It was not in dispute that three was a “provision, criterion or practice” which placed disabled persons at a “particular disadvantage”. The main issue was whether, as a “service provider”, FirstGroup had complied with its duty to take such steps as it was reasonable to have to take to remove the disadvantage: EA, ss. 29(7) and 20(3).
The seven-judge Supreme Court unanimously decided that FirstGroup had not complied with that duty. However, there was some disagreement as to what the company should have done. There were three main contentions.
First, Mr Paulley argued that the notice should have been more strongly worded.
The majority (Lords Neuberger, Toulson, Reed and Sumption) held that it was not reasonable to expect a more peremptory notice. In their view, the notice did require a non-wheelchair user to move, albeit in polite terms. There was also evidence to suggest that passengers responded more positively to less domineering notices: paragraphs 63, 86, and 92.
The minority (Lady Hale and Lords Kerr and Clarke) considered that the notice read like a mere request and should have been firmer: paragraphs 103, 122, and 155.
Secondly, Mr Paulley argued that bus drivers should be required to take further steps to require non-wheelchair users to move.
The Supreme Court agreed that the bus driver had not done enough. A bus driver should form a view as to whether the passenger taking up the space can reasonably be expected to move to another available space on the bus. There will be some cases in which an existing passenger may have a legitimate reason to remain which is sufficient to outweigh the interests of the wheelchair user: they might themselves have a disability, for example. However, otherwise, the bus driver should reword any initial request in the language of requirement. The driver should also consider pausing the journey so as to “shame” a recalcitrant passenger into moving: see paragraphs 53, 66, 83, 92, 105, 129, and 155. However, the majority (at least) did accept that if, after such measures, the passenger remained obstinate, the bus driver may have no choice but to refuse entry to the wheelchair user.
Thirdly, Mr Paulley argued that a recalcitrant passenger should be compelled to disembark in order to make way for a wheelchair user.
The majority took the view that this would never be reasonable: it would not be reasonable to eject an existing, paid-up passenger (and certainly not if there was no other space on the bus). Further, such a policy would generate too great a risk of confrontation and FirstGroup would have no power to enforce it: see paragraphs 51-52, 55, 81, and 92.
The minority’s position is more obscure. Lord Clarke took the view that, in some circumstances, it would be appropriate to require the passenger to disembark: paragraphs 158-159. Lady Hale and Lord Kerr confined themselves to accepting that it would not be reasonable forcibly to “manhandle” a recalcitrant passenger off the bus, but were less clear as to whether they would have expected a bus driver verbally to “require” such a passenger to disembark: see paragraphs 106 and 129.
A further issue
The majority held that the recorder at first instance had awarded damages of £5,500 on the basis of Mr Paulley’s most extreme case, which was rejected by the Supreme Court (namely that FirstGroup should have had a policy of “enforcing” a requirement to move, if necessary by removing the passenger from the bus): see paragraphs 29-31, 85, and 92. Indeed, he had accepted before the Court of Appeal that this was his case, which was a key reason why that court allowed FirstGroup’s appeal: see paragraphs 34-37. The majority decided that, in the circumstances, the award of damages should not be reinstated. They did not consider that they could conclude that, had the limited adjustments identified been implemented, the mother would have moved so as to allow Mr Paulley to board; further, they considered that the case did not merit remittal so as to allow the recorder to make appropriate findings: paragraphs 61, 85 and 92.
The minority would have reinstated the recorder’s award of damages, either on the basis that his judgment was more nuanced or because they felt that they could conclude for themselves that the mother would probably have moved if more pressure had been placed upon her: paragraphs 109, 139-140, and 149.
This judgment is important for operators and users of public transport. Lord Sumption in particular had misgivings about using the law to “enforce basic decency and courtesy”. However, it is now clear that staff must normally do more than merely ask an existing passenger to move to make space for a wheelchair user. What exactly will need to be done would depend on the circumstances, including in particular the member of staff’s assessment as to whether the passenger could reasonably be expected to move, but the undoubted difficulties involved in making that assessment were of little weight against the powerful imperatives of the EA.
There is also some wider importance. It is well-established that “primary” discriminators may be held liable for the actions of others: for example, under s. 109 of the Equality Act 2010, employers will usually be liable for discriminatory acts done by their employees. However, there is little case law concerning the degree to which a person’s own obligations under the EA may require him to take steps to control the actions of a third party for whom he is not liable and who does not himself have any obligations under the EA. (In Conteh v Parking Partners  ICR 341, the Employment Appeal Tribunal held that an employer could be liable for harassment by failing to take steps to prevent abusive behaviour by third parties, but this was on the premise that the employer was thereby responsible for creating the hostile environment.) Accordingly, this judgment will need to be considered carefully by employers, service providers, and others who fall within the scope of the EA in circumstances in which their employees, service users etc. may be disadvantaged by the actions of third parties over whom they may be able to exert some influence.