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Paulley v First Group Ltd –
Leeds County Court 2013
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This case centres on whether the rights of wheelchair users to travel by bus take
precedence over non disabled passengers, in particular parents with pushchairs, who
might be using the same space – a question that has troubled a number of bus
companies across the UK in recent years. It also highlights an area where disabled
people feel most discriminated against – travelling on public transport. The judgement
is helpful and makes it clear that a person with a mobility impairment has the same
rights as a non disabled person to make travel plans and to expect to be able to take
the buses and trains that they intended.
On 24 February 2012 Mr Paulley, a wheelchair user, had plans to have lunch with his
parents. He tried to board the number 99 bus from Wetherby to Leeds due to leave at
9.40am and operated by First Bus Ltd. The designated space for wheelchairs was,
however occupied by a woman with a pushchair containing a sleeping child. The bus
driver asked the woman to vacate the wheelchair space by folding the pushchair. She
refused and so Mr Paulley was told that he could not board the bus. Mr Paulley did
suggest that he could try to take a seat on the bus and have his wheelchair folded and
stored but the bus driver did not think that this could be done safely and at the hearing
Mr Paulley accepted that there would have been a risk to health and safety in trying to
do this.
Mr Paulley had to wait for a bus that left at 9.56 but this took a longer route and as a
result he missed his train at Leeds station and consequently was an hour late for his
lunch date. He brought a claim for disability discrimination under the Equality Act 2010.
At the hearing the bus driver said that he was following company policy in acting as he
did as at the time the policy stated
“Wheelchairs do not have priority over buggies, but to ensure 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.”
Later this policy was amended slightly to say that
“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 upon
the goodwill of the passengers concerned. Unfortunately, if a fellow passenger refuses
to move you will need to wait for the next bus.”
The court, however, held that the change in the wording of the policy made no material
difference. Regardless of whether wheelchair users were said to have priority or not it
remained the case that if the wheelchair space was occupied by other passengers
who refused to move the disabled person would not be able to travel. It was essentially
a “first come, first served” policy and non-disabled passenger could determine whether
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or not a disabled person could travel. First Group’s explanation was that they felt that
they had been too “directive” in insisting that the space be vacated for wheelchair
users and so were adopting a more “customer friendly” approach by requesting other
passengers to “give up” the space if a disabled passenger needed it rather than
requiring them to do so.
The court first considered whether there was a “provision, criterion or practice” (PCP)
that placed the disabled person, Mr Paulley, at a substantial disadvantage because of
his disability compared to people without his disability. It held that the “first come, first
served” policy was a PCP and that it did place Mr Paulley at a substantial
disadvantage. First Group tried to argue that the comparator in this case should not be
passengers generally but passengers with buggies who would also be unable to travel
if someone was already in the that space. Compared to passengers with buggies Mr
Paulley was not at a substantial disadvantage it claimed. The court rejected this line of
argument and said that to use a comparator who also had difficulties using the service
for a non-disability related reason would be to negate the purpose and effect of the
reasonable adjustments provisions of the legislation. The comparator had to be with
other non-disabled passengers generally.
Mr Paulley had been substantially disadvantaged because he could not take the bus
that he had intended to travel on because he was disabled and could not sit anywhere
on the bus.
Once the disadvantage had been identified the court went onto consider whether a
reasonable adjustment could have been made to reduce or remove that disadvantage.
Various adjustments were considered but in essence the adjustment that Mr Paulley
was requesting was for First Group to have a policy that required non-wheelchair
users to vacate the space on the bus if it was needed by a wheelchair user. First
Group argued that this was not a reasonable adjustment because it could lead to
confrontations with passengers and there was little that a driver could do if a nondisabled passenger refused to give up the space. The court disagreed and said that
such a policy would be reasonable and that
“It could be incorporated into their conditions of carriage so that any non-disabled nonwheelchair using passenger could be obliged to leave the wheelchair space if
requested to do so because a wheelchair user needed to use it; just as there are
conditions of carriage which forbid smoking, making a nuisance or other “anti social ”
behaviour on the pain of being asked to leave the bus then a refusal to accede to a
requirement to vacate the space could have similar consequences. In my view, once
the system had been advertised and in place there would be unlikely to be caused any
disruption or confrontation, as all passengers would know where they were. Although
such a policy might inconvenience a mother with a buggy that, I am afraid, is a
consequence of the protection which Parliament has chosen to give to disabled
wheelchair users and not to non-disabled mothers with buggies.”
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It also noted that other bus companies have already adopted such a policy, for
example Lothian and London Transport.
In conclusion the court found that Mr Paulley had been discriminated against and
awarded him £5,500 in damages for injury to feelings. Mr Paulley had also asked for
an injunction, which would have required First Group Ltd to change its policy. The
judge decided not to grant the injunction yet and said it would give First Group Ltd six
months in which to voluntarily make the changes required under the Equality Act and
that he expected that they would do so by the time they returned to the court in six
months time.
For more information please contact our Legal Director, Bela Gor at
belag@businessdisabilityforum.org.uk
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