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In a recent headline-grabbing case, the Court of Appeal looked at a bus company’s obligations to make reasonable adjustments for a disabled service…

In the recent headline-grabbing case of First Group PLC v Paulley the Court of Appeal looked carefully at a bus company’s obligations to make reasonable adjustments for a disabled service user.

This case looked at discrimination in the provision of goods and services. However, the Judgment may have wide reaching implications for employers too, as very similar rules oblige employers to make adaptive changes to accommodate their disabled employees.

The facts

Mr Paulley, a wheelchair user, was unable to board a bus operated by First Group as the wheelchair space was occupied by a woman with a sleeping child in a pushchair. When asked to move by the driver the woman refused. First Group’s policy was that other customers would be asked to move from the wheelchair space to accommodate a wheelchair user but, if they refused, the wheelchair user would not be permitted to board.

Mr Paulley claimed that First Group had discriminated against him on the grounds of his disability.

The decision

The County Court that first heard the case agreed with Mr Paulley’s point of view. It found that the bus company should have taken the reasonable step of altering its ‘conditions of carriage’ (the rules governing travel on its services) to require a non-disabled passenger to move from the wheelchair space if it was needed by a disabled user. The Court also stated that First Group should have introduced an enforcement policy enabling a bus driver to compel a non-disabled passenger to leave the bus.

However the Court of Appeal disagreed with this approach and held that First Group had not discriminated against Mr Paulley. It held that it was not reasonable to require First Group to amend their conditions of carriage or to expect First Group staff to enforce a ‘wheelchair first’ policy at all times. For a variety of reasons it was found that the company had not failed to make reasonable adjustments to accommodate its disabled service users.

What does this mean for employers?

In this case, the Court of Appeal took a careful and structured approach to the process of accommodating a disabled person by making reasonable adjustments.

As a first step in a disability discrimination claim, the disabled employee or service user must identify the ‘provision, criterion or practice’ (PCP); the policy or course of action adopted by the employer or service provider, which places the disabled person at a disadvantage. An employer or service provider is then under a positive duty to make reasonable adjustments to alleviate that disadvantage.

The Court of Appeal in this case adopted an interesting, arguably employer-friendly stance, on how the PCP should be determined.

The Judgment also makes some very important points about when a particular step can be regarded as ‘reasonable’ and should be actioned by a service provider or employer, and when an adjustment will impose a disproportionate burden.

What is the PCP?

Mr Paulley identified the policy being operated by First Group of ‘requesting but not requiring’ other passengers to vacate the wheelchair space as the PCP which placed him at a substantial disadvantage in comparison with non-disabled bus passengers. He alleged that First Group had failed to take reasonable steps to avoid that disadvantage.

However, the Court of Appeal took a slightly different view, stating that it might sometimes be necessary to ‘strip back’ the policy being challenged to identify the PCP beneath. It held that the correct PCP in this case was First Group’s failure to implement a ‘wheelchair first’ policy. The practice of requesting passengers to move represented an adjustment First Group had already made to that ‘base position’.

This approach has very interesting implications for employment cases. Arguably it is favourable to employers. Starting from the ‘base position’ immediately draws attention to any adjustments the employer or service provider has already made. This may in many cases make the practice being challenged seem inherently more ‘reasonable’ as it is already an adapted or improved practice compared with the ‘raw’ PCP.

This is a subtle but important shift in focus. This Judgment seems to suggest that, rather than asking ‘what more could the employer have done’ a Court or Tribunal should ask ‘is what the employer has already done enough’.

When is an adjustment ‘reasonable’?

The Court of Appeal held that the failure of the bus company to enforce a ‘wheelchair first’ rule was not a failure to make reasonable adjustments as there was no reliable method of enforcing such a rule. 

It also held that such a provision would cause disproportionate disruption to passengers who, having already boarded, might be obliged to leave the bus in order to allow a wheelchair user to get on. For example, the Judge observed that an ‘absolute’ rule might result in a family with heavy luggage being turned off the bus to make way for a single wheelchair user.

This is interesting as it demonstrates the reasoning a Court or Tribunal should usually apply to determine whether a proposed adjustment is reasonable. As well as considering whether the step will alleviate the disadvantage suffered by the disabled user or employee, careful thought should also be given to how the adjustment will play out in practice. The incidental effects of making an adjustment should be taken into account.

This Judgment suggests that if an adjustment will be very onerous, or even impossible, for a manager to enforce, it is unlikely to be reasonable. Any disruption caused to an employee’s colleagues will be very relevant to the question of reasonableness.

It is important to remember though that, while the wider implications of an adjustment on the workforce can be taken into account, it is unlikely to be a defence to a reasonable adjustments claim that members of staff were obstructive or unhelpful. A Tribunal will expect an employer to effectively manage the workforce to implement reasonable adjustments wherever necessary and appropriate.


Whether an employer has failed to make reasonable adjustments to accommodate a disabled employee will always be fact sensitive. The Tribunal will apply an objective standard to determine whether the obligation has been met. Deciding whether changes requested by an employee are achievable or simply out of scope is always a difficult and sensitive decision for an employer.

Nothing in this case dilutes the key message that businesses must prioritise the needs of disabled employees or service users and have a positive duty to make adjustments to accommodate them.

However, this Judgment illustrates that a Court or Tribunal will consider the obligation to make reasonable adjustments in a real practical context. Flexibility, enforceability and the impact on others will all be key concerns when considering ‘reasonableness’.

Mandy Higgins is a Partner in the Liverpool Employment and Pensions team and is also a member of Weightmans Transport and Logistics group which provides cross-disciplinary advice to this sector.

If you have any queries about this Judgment or making reasonable adjustments for a disabled employee please do not hesitate to get in touch with Mandy or your usual contact in the Employment and Pensions team.

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