Supreme Court rules on Disability Discrimination
The Duty to make Reasonable Adjustments
The duty to make reasonable adjustments for disabled employees is not a new concept. Originally a product of the Disability Discrimination Act 1995, it has recently been reincarnated in the Equality Act 2010. Employers will be familiar with the duty to consider what adjustments can be made to assist disabled employees in the workplace and employment tribunal claims for failure to make such adjustments are not unusual. What is more unusual is a claim relating to a failure to make reasonable adjustments for disabled users of public services and it is a case in this area which has recently made its way to the Supreme Court in London.
Mr Paulley, a wheelchair user, attempted to board a bus operated by First Group plc in West Yorkshire back in 2012. The bus had a space for a wheelchair with a sign stating ‘please give up this space for a wheelchair user.’ There was a woman with a pushchair occupying the space at the time that Mr Paulley attempted to board the bus who was asked to fold up the pushchair and move. She refused to do so and as a result, Mr Paulley had to wait for the next bus.
Mr Paulley brought a claim in Leeds County Court seeking damages for First Group’s alleged failure to make reasonable adjustments under the Equality Act. The court found that Mr Paulley was put at a substantial disadvantage as a result of a provision, criteria or practice (PCP) applied by First Group, namely their policy of requesting but not requiring non-wheelchair users to vacate the space. This effectively triggered the obligation on the public service provider, First Group, to make reasonable adjustments, one of which would have been altering the notice to require non-disabled passengers to move if a wheelchair user required to board the bus and enforcing that as a policy. Mr Paulley was awarded damages and First Group appealed. The Court of Appeal allowed First Group’s appeal and Mr Paulley appealed to the Supreme Court.
The Supreme Court unanimously held that First Group had breached its duty to make reasonable adjustments. The majority of the judges found that if a driver concludes that a refusal to give up a wheelchair space is unreasonable, they should consider taking further steps to pressurise them to vacate the space. No damages were awarded, however, given the limited nature of the breach. Interestingly, the minority of the court would have awarded damages in recognition of the chance that Mr Paulley would have been able to board the bus, had the additional steps been taken. The result of this case was a victory for Mr Paulley, albeit he was not awarded any financial compensation.
Implications for Employment Law
This case does of course concern discrimination in public services as opposed to in the context of an employment relationship. One factor taken into account by the court was the difficulty that the driver might have encountered in trying to compel an uncooperative passenger to move. The increased level of control which an employer has over their workforce, however, makes it likely that more would be expected of an employer. Employers should be mindful of their duties to make reasonable adjustments for those with disabilities.
A copy of the full judgement can be found here: https://www.supremecourt.uk/cases/docs/uksc-2015-0025-judgment.pdf