The Supreme Court has unanimously allowed the appeal, in FirstGroup Plc v Paulley, although only to a limited extent. The appeal relates to the lawfulness of the bus company, a subsidiary of FirstGroup Plc policy regarding the use of space provided for wheelchair users on its buses. The Appellant, Mr Paulley, is a wheelchair user, attempted to board a bus operated by the company on 24th February 2012. At the time Mr Paulley endeavoured to board, a woman with a sleeping child in a buggy occupied the wheelchair space. Although there was a wheelchair sign and a notice stating “Please give up this space for a wheelchair user”, the woman, when asked to move by the bus driver, stated that the buggy did not fold away, and as a result Mr Paulley was forced to wait for the next bus.
Mr Paulley issued proceedings against FirstGroup claiming they had failed to make “reasonable adjustments” to their policies which was contrary to section 29(2) of the Equality Act 2010. The appellant claimed that by failing to adjust the company had acted unlawfully and had placed Mr Paulley and other wheelchair users at a considerable disadvantage by comparison with able-bodied passengers.
The Supreme Court unanimously allowed Mr Paulley’s appeal, although only to a limited extent. The limitation referred to the extent that the company’s policy requires a driver to request a non-wheelchair user to vacate the space without taking any further steps was unjustified. 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.
The Court came to its decision based on the fact that under section 29 of the 2010 Act, as a “public service provider”, FirstGroup must not discriminate against a person requiring its services by not providing the person with the service, and it must make “reasonable adjustments” to avoid substantial disadvantage to disabled persons. The court held however that FirstGroup cannot be criticised for choosing not to express the Notice in more forceful terms: it was aimed at politely requiring non-wheelchair users to vacate the space; there was evidence that “directive” notices are a less effective means of communication with the public; and the use of specially emphatic language should not determine legal liability in this case. The court held that it was however insufficient for the company to instruct its drivers simply to request non-wheelchair users to vacate the space and do nothing further if the request was rejected. The court concluded that the approach of the driver is circumstantial, but where he or she concludes that the refusal is without reason, some further step to pressurise the non-wheelchair user to move should be considered, such as rephrasing the request as a requirement (especially where the non-wheelchair user could move elsewhere in the bus) or even a refusal to drive on for several minutes.
The decision while relevant to the Irish context the fact that our equality legislation also prohibits discrimination on the family ground adds an additionally factor that would need to be considered.
For judgement click here.
For press summary click here.
For further commentary click here.