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In the high profile case of First Group PLC v Paulley, the Court of Appeal (CA) considered whether a bus operator had made reasonable adjustments putting passengers in wheelchairs at a disadvantage.
Mr Paulley, a wheelchair user, was unable to travel on a bus because the space designated for wheelchairs was occupied by a mother with a pushchair who refused to move after being requested to do so by the bus driver.
Mr Paulley claimed that the bus operator had discriminated against him on the grounds of his disability. It was the bus operator's policy that customers would be asked to move from the wheelchair space if a wheelchair user wanted to board the bus, but that if customers refused to move then the wheelchair user would not be permitted to get on the bus. In particular Mr Paulley claimed that the bus operator's policy was a 'provision criterion or practice' (PCP) which placed him at a substantial disadvantage when compared to non-disabled passengers, and that the bus operator did not take reasonable steps to avoid this disadvantage.
The Country Court upheld Mr Paulley's claim, confirming that the bus operator should have taken reasonable steps to eliminate the disadvantage, including altering its policy to require other passengers to move if the wheelchair space was needed for a wheelchair user, with an enforcement policy requiring passengers to leave the bus if they refused to move from the wheelchair space.
This decision was appealed by the bus operator and the CA allowed the appeal.
The CA considered that the PCP should be stripped down to its 'base position' and should not include any adjustments already made to the policy to accommodate those with a disability. In this case the correct PCP was the first come, first served, policy for the wheelchair space, and not the policy of requesting but not requiring non-wheelchair passengers to vacate the wheelchair space.
The CA found that this PCP would put wheelchair users at a substantial disadvantage when compared to non-wheelchair users, however the CA concluded that the obligation to make reasonable adjustments did not extend to requiring passengers to vacate the wheelchair space whenever it was needed by a wheelchair user.
The CA applied factors for assessing what are reasonable steps to take as suggested in the Equality and Human Rights Commission Code of Practice. It was found that it was not practical for the bus operator to compel all passengers to vacate the space, it would cause disproportionate disruption to other passengers and could not be enforced under criminal law.
Although this is a very fact specific case and not in the context of employment, it is useful for employers as it shows the CA's approach to assessing what adjustments are reasonable in the circumstances and the different factors taken in to account. When assessing what reasonable adjustments to take all surrounding factors must be looked at before making a decision including the impact the potential adjustment would have on others.
The CA's guidance that the PCP should be identified as the raw policy, stripping out any adjustments already made to accommodate those with a disability, is useful in the context of all reasonable adjustments claims.