Disability discrimination: reasonable adjustments?
Background
Under the Equality Act 2010 (Act) a public service provider has a duty to make “reasonable adjustments” to ensure disabled individuals are not unfairly disadvantaged by reason of their disability.
Where a provision, criterion or practice (PCP) of the service provider puts a disabled person at a substantial disadvantage in comparison with non-disabled persons, the service provider must take reasonable steps to avoid the disadvantage.
Facts
Mr Paulley, a wheelchair user, attempted to board a bus operated by the company on 24 February 2012 to get from Wetherby to Leeds. The bus had a designated wheelchair space which was signaled by a wheelchair sign and notice which read “Please give up this space for a wheelchair user”.
On boarding the bus, Mr Paulley was unable to use the wheelchair space, which was occupied by a woman with a sleeping child in a pushchair. The woman was asked to fold down the pushchair and move by the driver. She refused, noting that the pushchair was not collapsible. Mr Paulley was therefore unable to travel on the bus. As a result, Mr Paulley missed his train connection to Leeds and was unable to meet his parents for lunch that day.
Mr Paulley issued a claim against the company for unlawful discrimination on grounds of his disability. Specifically, the Company operated a PCP which consisted of a “first come, first served” policy, which Mr Paulley claimed put him at a substantial disadvantage compared to non-disabled passengers: that where a passenger was already in a disabled space, the disabled user who arrives later is at a substantial disadvantage of not being able to use other free spaces on the bus which the non-disabled passenger could use, and therefore the disabled user is unable to travel, even though the bus is not full.
Decision
On first hearing, Mr Paulley’s claim was successful. It was decided that the company should have adjusted their policy to require (rather than simply request) non-disabled passengers to give up the wheelchair space for a disabled passenger; enforcing this by removing the non-disabled passenger from the bus if they refuse.
The company appealed this decision to the Court of Appeal, who found that it would be unfair and unpractical to require the company to adjust its policy so that drivers must remove non-wheelchair users from the bus if they refuse to give up a wheelchair space.
Mr Paulley appealed the decision to the Supreme Court which has, in part, upheld the original decision that the company failed to make reasonable adjustments to its policy which put Mr Paulley at a substantial disadvantage.
The Supreme Court decided that the company should request non-wheelchair users to give up the space for a wheelchair user and, where a request is unreasonably refused, they should consider taking further action such as stopping the bus to speak to the non-disabled passenger and encouraging them to move. Overall, drivers should abandon the “request and retreat” approach in favour of a more robust “request and require” stance. For example, if a driver felt a request is being unreasonably refused, they should (in the Supreme Court’s words) stop the bus “with a view to pressuring or shaming recalcitrant non-wheelchair users to move”.
What does this mean for you?
This is a somewhat unsatisfactory decision in that it does not clarify what is to be done where a non-wheelchair user unreasonably refuses to vacate the wheelchair space. How far is the driver to go in enforcing the policy? At what point will it be reasonable to remove one of the passengers from the bus and which passenger should be removed? What if that other person has a protected characteristic, for example pregnancy or age and there is nowhere else suitable for them to sit? The continuing uncertainty, even after the Supreme Court decision, reflects the increasing issues for employers and service providers in balancing the requirements of different protected groups of employees or service users.
The key message is that your policies and procedures need to be clear that adjustments must be made to ensure disabled customers are not being disadvantaged by reason of their disability. Whether it’s providing disabled parking, bathrooms or spectator spaces; the facilities themselves need to be backed up with sufficient policies for their use.
The Courts are aware that varying circumstances will call for different approaches; they understand that what is reasonable in one instance may not be reasonable in another. Furthermore, they will give consideration to financial cost of implementing facilities, the size of your organisation and the practicability of changes. However, it is imperative to ensure that reasonable adjustments are being considered and made, where possible, adequate policies are enforced and that your staff are educated on avoiding disability discrimination.
If you have any queries about the matters discussed in this case please contact your dedicated team:
County FAs
Call 08448 240 432 or [email protected]
Chartered Standard Clubs
Call 0191 211 7799 or email [email protected]