FirstGroup Plc v Paulley
| Jurisdiction | England & Wales |
| Judge | Lord Neuberger,Lord Reed,Lord Toulson,Lord Sumption,Lady Hale,Lord Kerr,Lord Clarke |
| Judgment Date | 18 January 2017 |
| Neutral Citation | [2017] UKSC 4 |
| Court | Supreme Court |
| Date | 18 January 2017 |
[2017] UKSC 4
Lord Neuberger, President
Lady Hale, Deputy President
Lord Kerr
Lord Clarke
Lord Sumption
Lord Reed
Lord Toulson
Appellant
Robin Allen QC Catherine Casserley
(Instructed by Unity Law)
Respondent
Martin Chamberlain QC Oliver Jones
(Instructed by Burges Salmon LLP)
Heard on 15 June 2016
(with whom Lord Reed agrees)
This appeal concerns the lawfulness of a bus company's policy in relation to the use of the space provided for wheelchair users on its buses.
At around 9.35 in the morning of 24 February 2012, Mr Doug Paulley, who is a wheelchair user, arrived at Wetherby bus station, expecting to catch the 9.40 bus ("the Bus") to Leeds. On arrival at Leeds he intended to catch the train to Stalybridge to meet his parents for lunch. The Bus was operated by a subsidiary of FirstGroup PLC ("FirstGroup"), which is the parent company of a group of companies which operates a total of about 6,300 buses. The Bus was equipped with a lowering platform and a wheelchair ramp. The Bus also had a space (a "space") for wheelchairs, which included a sign that read "Please give up this space if needed for a wheelchair user."
When Mr Paulley started to board the Bus, the driver, Mr Britcliffe, asked him to wait because the space was occupied by a woman with a sleeping child in a pushchair. The space had a sign with the familiar designation of a wheelchair sign, and in addition it had a notice ("the Notice") saying "Please give up this space for a wheelchair user". Mr Britcliffe asked the woman to fold down her pushchair and move out of the space so that Mr Paulley could occupy it in his wheelchair. She replied that her pushchair did not fold down, and refused to move. Mr Paulley then asked whether he could fold down his wheelchair and use an ordinary passenger seat. Mr Britcliffe refused that request, because there was no safe way of securing the wheelchair and the Bus had to take a rather winding route.
As a result, Mr Paulley had to wait for the next bus, which left around 20 minutes later. The consequence of this was that Mr Paulley missed his train at Leeds, and had to take a later train which arrived at Stalybridge an hour later than he had planned.
Although Mr Paulley was a frequent bus user, this was the first time that he was unable to get on a bus because someone refused to vacate the space.
Mr Paulley issued proceedings in the Leeds County Court against FirstGroup for unlawful discrimination against him on the ground of his disability. His claim was based on the proposition that FirstGroup had failed to make "reasonable adjustments" to its policies contrary to section 29(2) of the Equality Act 2010. The claim came on before Recorder Isaacs.
The evidence showed that FirstGroup's published policy about wheelchairs and their users at the time of the incident was this:
"As part of our commitment to providing accessible travel for wheelchair users virtually all our buses have a dedicated area for wheelchair users; other passengers are asked to give up the space for wheelchairs. … If the bus is full or if there is already a wheelchair user on board unfortunately we will not be able to carry another wheelchair user. … Wheelchairs do not have priority over buggies, but to ensure that all our customers are treated fairly and with consideration, other customers are asked to move to another part of the bus to allow you to board. Unfortunately, if a fellow passenger refuses to move you will need to wait for the next bus."
By the time of the trial, the published policy had changed somewhat, and it was in these terms:
"As part of our commitment to providing accessible travel for wheelchair users virtually all our buses have a dedicated wheelchair area for wheelchair users; other passengers are asked to give up the space for wheelchairs. …
Wheelchair users have priority use of the wheelchair space. If this is occupied with a buggy, standing passengers or otherwise full, and there is space elsewhere on the vehicle, the driver will ask that it is made free for a wheelchair user. Please note that the driver has no power to compel passengers to move in this way and is reliant on the goodwill of the passengers concerned. Unfortunately, if a fellow passenger refuses to move you will need to wait for the next bus."
The evidence before the Recorder established that Mr Britcliffe had followed FirstGroup's policy, by asking the woman with the pushchair to move from the space, but, when she refused, by taking the matter no further. Mr Birtwhistle, FirstGroup's UK Bus Projects Manager, told the Recorder that "in the main" passengers complied with a request to give up the space. Mr Birtwhistle also explained why FirstGroup had adopted the policy set out in paras 7 and 8 above. The company had carried out a review of the way it communicated with its customers, and found that many of them thought that it was putting up too many peremptory notices on buses. FirstGroup had concluded that it would be better policy to use more pleasant and engaging notices which were friendlier to customers. So far as FirstGroup's policy about the space was concerned, Mr Birtwhistle said that it was designed to cause the customer to think "Somebody else needs this space. I will be reasonable. I will move away from it." The policy was intended to be non-confrontational and placatory.
The Recorder found for Mr Paulley and awarded him £5,500 damages. FirstGroup appealed to the Court of Appeal who allowed its appeal — [2015] 1 WLR 3384. Mr Paulley now appeals to this Court.
Mr Paulley's claim was based on his allegation that FirstGroup had failed to comply with its duties under the Equality Act 2010, and it is therefore appropriate to set out the relevant provisions of that Act. However, before doing so, I should refer to earlier legislation applicable to public service vehicles, as it was relied on by the Court of Appeal, and it was also canvassed in the arguments before this Court.
The Bus was a "public service vehicle" for the purposes of the Public Passenger Vehicles Act 1981 ("the 1981 Act"), and it was therefore required to comply with Schedule 1 to the Public Service Vehicles Accessibility Regulations 2000 (SI 2000/1970) ("the Accessibility Regulations"). Paragraph 2 of that Schedule required the Bus to have at least one wheelchair space on the lower deck, which had to comply with para 3 or 4. The Bus complied with para 4, which contains detailed specifications as to the size and other characteristics of the space, and also envisages that a folding or tip-up seat may be placed in the space, and requires there to be a notice on or near such a seat stating "Please give up this seat for a wheelchair user". The Bus was also required to carry a sign adjacent to the space which showed a representation of a person in a wheelchair. Paragraph 3 of Schedule 2 to the Accessibility Regulations requires there to be at least four seats designated "as priority seats for use by disabled passengers", and a sign on or near a priority seat "indicating that disabled persons have priority for the use of that seat".
Section 25 of the 1981 Act also enables regulations to be made authorising the driver of a bus or, at his request, a police constable to remove a passenger infringing what are known as the Conduct Regulations, namely the Public Service Vehicles (Conduct of Drivers, Inspectors, Conductors and Passengers) Regulations 1990 ("the Conduct Regulations") ( SI 1990/1020), which were made under these powers.
Para 5(2) of the Conduct Regulations provides:
"A driver, inspector and conductor shall take all reasonable steps to ensure that the provisions of these Regulations relating to the conduct of passengers are complied with."
Para 6(1) of the Conduct Regulations states that no passenger shall, inter alia:
"(b) put at risk or unreasonably impede or cause discomfort to any person travelling on or entering or leaving the vehicle …
(k) remain on the vehicle, when directed to leave by the driver, inspector or conductor on the following grounds:
(i) that his remaining would result in the number of passengers exceeding the maximum seating capacity or maximum standing capacity …
(ii) that he has been causing a nuisance; or
(iii) that his condition is such as would be likely to cause offence to a reasonable passenger …"
Para 6(2) of the Conduct Regulations states that:
"… [A] passenger on a vehicle who has with him [inter alia any bulky or cumbersome article] or any animal —
(a) if directed by the driver, inspector or conductor to put it in a particular place on the vehicle, shall put it where directed; and
(b) if requested to move it from the vehicle by the driver, inspector or conductor, shall remove it."
Para 8(2) of the Conduct Regulations provides that any passenger on a vehicle who contravenes any provision of those regulations "may be removed from the vehicle by the driver … or, on the request of the driver, … by a police constable."
The Conduct Regulations were amended by the Public Service Vehicles (Conduct of Drivers, Inspectors, Conductors and Passengers) (Amendment) Regulations 2002 (SI 2002/1974), under powers conferred by the Disability Discrimination Act 1995, to deal with wheelchair users. Para 12 of the Conduct Regulations as inserted by the amendments provides that:
"(2) If there is an unoccupied wheelchair space on the vehicle, a driver and a conductor shall allow a wheelchair user to board if —
(a) the wheelchair is of a type or size that can be correctly and safely located in that space, and
(b) in so doing, neither the...
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