Jersey: Who's On The Bus? Decision Of UKSC Could Have Wide-Reaching Consequences

This year Baker & Partners sponsored the University of Leicester Law Review Essay Contest, with the winner Jeremy Elliott receiving a week's placement with the firm. As part of the work he undertook with Baker & Partners, Jeremy produced the following briefing paper:

  1. Is the designated wheelchair space on a bus purely for wheelchair users? Do they have priority over other passengers? On 15th June 2016 the UK Supreme Court sat to hear FirstGroup Plc (Respondent) v Paulley (Appellant) on this very topic. The case was heard by seven judges – as opposed to the usual five – a measure reflective of the public importance of the matter in issue.
  2. On 24th February 2012, Doug Paulley, a wheelchair user, was prevented from boarding a bus when a woman with a sleeping child in a pushchair refused to vacate the space designated for wheelchair users. Mr Paulley brought a discrimination claim against the bus company, FirstGroup Plc, and was successful in Leeds County Court on the basis that the incident amounted to an act of direct discrimination.
  3. FirstGroup brought an appeal which was upheld unanimously by the Court of Appeal. It held that the company's "provision, criterion or practice" ('PCP') was satisfactory as it met the reasonable adjustments test under the Equality Act 2010, and was followed correctly. This judgment further avers that the driver had no power to require (rather than merely request) a passenger to move out of the wheelchair space, or to remove them from the bus if they refused to do so. However, in Black and Others v Arriva North East Ltd [2013], on similar facts the Middlesbrough County Court came to a contrary conclusion. The Supreme Court's judgment shall clarify the position.
  4. Lord Justice Lewison observed that this is not a case to decide whether a non-wheelchair user should vacate the wheelchair space on a bus for someone who uses a wheelchair – "common decency" dictates that they do so when and where they can. This case instead considered whether a bus company must instigate a policy requiring this movement, should the matter arise. Is the duty merely with the passengers or with the driver as well? Even though the court of first instance felt it was, and that this measure was appropriate, the Court of Appeal deemed it "a step too far".
  5. In reaching its decision the Court of Appeal departed from the court of first instance in a number of key respects. It felt that the court had misconstrued the test to determine direct discrimination by using the comparator of a non-disabled passenger, or someone who is able-bodied and capable of sitting/standing anywhere on the bus. The test applied was, therefore, whether Mr Paulley was prevented from using the bus due to a protected characteristic (i.e. a wheelchair user) where someone who did not have this characteristic would not have been so prevented; whether a person without need of a wheelchair would have suffered the same inconvenience. The Court of Appeal found this reasoning to be flawed as it assumed that the comparator individual would not have any need for the extra space afforded by the wheelchair space. In other words, it failed to consider additional factors such as pushchairs or large items of luggage and in doing so overlooked the needs of the person who actually occupied that space in this particular case – a mother with a pushchair. The court disagreed with court at first instance that "the needs of all wheelchair users trumped all other considerations", rather than considering other possible alternatives.
  6. The Court of Appeal also held that other factors should have been taken into consideration when deciding how the designated area should have been allocated. These considerations included who else and how many occupied the space, how full the bus was and where it was on its route. As the driver had the power to ask people to disembark in certain situations, these factors should be applied to determine the appropriate course of action. As Lord Justice Lewison stated, "if a non-wheelchair user is required to leave the bus, he or she may be left in an unfamiliar location...whereas for the wheelchair user waiting at the bus stop the likelihood is that he will at least be in a location that is familiar to him".
  7. The Court of Appeal further considered the power of the notices in the bus, indicating that passengers should make way for wheelchair users. The intention of FirstGroup was to be non-confrontational, based on research indicating better results with more customer-friendly signage. The County Court held that more prescriptive signs would have been appropriate, whereas the Court of Appeal disagreed, placing greater reliance on the evidence from FirstGroup.
  8. The future of the law will depend upon the interpretation of this space on the bus. If it is purely for the benefit of wheelchair users, then the PCP will have to change to extend powers of the driver to requiring other passengers to vacate that space. If, however, the area is for the benefit of all passengers who may find it useful, then no such power can be conferred and wheelchair users would share an entitlement with others who seek to utilise its benefits. Government guidance accompanying the amendments to the Conduct Regulations indicate the latter, striking a balance between interests of all passengers; this pre-dates the Equality Act, but the guidance is still persuasive. It is anticipated that the Supreme Court will provide definitive guidance.
  9. Arden LJ noted that neither party suggested that the design of the bus should be altered to accommodate more wheelchair users. This would not affect the instant case, as it is a future concern rather than a current one. However, the Supreme Court's decision will impact all passengers in the future. Even though adapting buses will be costly, it would allow for more access for wheelchair users, and provides more space for other passengers who require that space – such as families with pushchairs.
  10. The decision of the Supreme Court will likely have far-reaching implications in the area of equality and discrimination law. As the relevant legislation in Jersey is broadly similar to the UK, this decision will be highly persuasive. It will be interesting to see how this case unfolds; with the scope to affect all cases of allocation of space to particular groups, developments should be monitored carefully in both the public and private sectors.

FirstGroup Ltd v Paulley [2014] EWCA Civ 1573

Bailii –

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