Is your club accessible?

Summary

On 18 January 2017, the Supreme Court ruled on the case of FirstGroup Plc  v Mr Doug Paulley [2017] UKSC 4; finding that FirstGroup Plc had failed to make reasonable adjustments to avoid Mr Paulley being disadvantaged as a wheelchair user while using one of its bus services.

The decision is important as a general reminder to businesses and public organisations, who should review their relevant policies and procedures for supporting disabled people. When providing services to the public they need to provide sufficient reasonable adjustments to assist people with disabilities. Although it’s a public service duty, it has obvious implications for clubs and sporting bodies.

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 because of their disability.

For example, where a “provision, criterion or practice” of the service provider puts a disabled person at a substantial disadvantage compared to a non-disabled person, they 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. The bus had a designated wheelchair space, signaled by a wheelchair sign that 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 but refused, noting that the pushchair was not collapsible. Mr Paulley was therefore unable to travel on the bus.

Mr Paulley issued a claim against the company for unlawful discrimination on grounds of his disability. Specifically, the company operated a “first come, first served” policy, which Mr Paulley claimed put him at a significant disadvantage to non-disabled passengers.

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, which 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 disadvantaged disabled wheelchair users.

It was noted that requiring drivers to remove non-disabled passengers from the bus in certain circumstances would be unreasonable. However, the company should have adjusted its policy to go further than simply refusing wheelchair users travel if the space was not given up by a non-disabled passenger.

Ultimately, 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 denied, they should consider taking further action (such as stopping the bus to speak to the non-disabled passenger and encouraging them 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?

While this all remains unclear, the key message is that your policies and procedures need to be clear that adjustments must be made to ensure disabled customers are not disadvantaged. 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 different circumstances call for different approaches. They understand that what is reasonable in one case may not be reasonable in another. They will also consider the financial cost of implementing facilities, the size of your club and the practicability of changes. However, it is up to you to make sure reasonable adjustments are made, adequate policies are enforced and staff are educated on avoiding disability discrimination.

And if you have any queries on what this means for your club, please call our dedicated England Athletics Helpline on 0845 050 8458 or email [email protected]