The duty to make reasonable adjustments – what you can learn from the case of the wheelchair v the buggy

The Supreme Court has handed down an important Judgment on the extent of the duty to make reasonable adjustments in circumstances involving…

The Supreme Court has handed down an important Judgment on the extent of the duty to make reasonable adjustments in circumstances involving disability. The case of FirstGroup plc v Paulley has received widespread publicity and been heralded by the Equality and Human Rights Commission as a “victory for disabled people’s rights”. For employers the Judgment certainly confirms that the duty can require adjustments which other non-disabled employees/people “may find irksome or inconvenient”, however the differences of view expressed by the Supreme Court Judges about exactly what the duty requires illustrate how hard it can be to decide what is reasonable when considering real-life situations.

The facts

Mr Paulley, is a wheelchair user, who tried to catch a bus from Wetherby to Leeds.  The bus had a designated wheelchair space. The space was occupied by a woman with a sleeping child in a pushchair, who refused to fold up the pushchair or move when the driver requested she did so.  As a result Mr Paulley had to wait for the next bus. The company had a policy which tried to address this difficult potential conflict, confirmed its commitment to providing accessible travel for wheelchair users, and stated that they had priority use of the wheelchair space. If the space was occupied by others and there was space elsewhere on the vehicle, drivers were to ask passengers to vacate the space. However the policy stated that the driver had no power to compel other passengers to move and, if the other passenger refused to do so, the wheelchair user would have to wait for the next bus. Mr Paulley contended that this did not go far enough to meet the company’s legal obligation to make reasonable adjustments and therefore he had suffered unlawful disability discrimination.

The law on disability discrimination differs from that which applies to other protected characteristics. Where there is a provision, criterion or practice which places someone with a disability at a disadvantage when compared to others, the employer (or provider of a service to the public) is required to make such adjustments as are reasonable to address that disadvantage.  As the Supreme Court’s Judgment observes, legally this means that disabled people are, for very good reasons, a special case (and therefore to be treated more favourably than other members of the travelling public including parents with small children and those with bulky luggage). 

All of the Supreme Court Judges found that the company’s approach (described as first come first served) did not go far enough, however they differed in deciding how much further the Company was required to go.  The driver simply requesting vacation of the space and doing nothing more if the request was refused, was held to be insufficient. The majority of the Court decided that what was required was that the driver should instruct the passenger to move if their refusal was unreasonable, with forceful repetition of the request and possibly (if the bus was ahead of schedule) the bus not moving for a few minutes, as a way of shaming or pressuring the traveller to move. However (according to a majority of Judges) the obligation did not go as far as to mean the requirement to move had to be applied in circumstances where the passenger was not being unreasonable in refusing to move, or indeed that the passenger had to actually be removed from the bus if they continued to refuse.

What does this mean for me?

This case is about the provision of goods and services and not employment rights.  However the legal test for the duty to make reasonable adjustments is much the same. What is notable about the Judgment is that it emphasises the extent to which this duty can require you to make changes to normal and sensible policies. The bar for refusing adjustments because they are not reasonable, has probably been raised as a result of it.  

Much of the Judgment struggles with the extent to which a bus driver can or should be required to enforce on other passengers the need to treat the person with the disability more favourably. The Court’s reasoning emphasises that what is reasonable will depend upon the specific circumstances faced. This is certainly true in employment situations. However as employers have a far greater power to require employees to facilitate adjustments, the obligation will be far more likely to apply where the others who object are employees. It is very important to remember that the duty to make reasonable adjustments does require you to treat employees with a disability more favourably, even if that meets with objections from other employees (who may be disadvantaged as a result).

Comment

What stands out from the detailed Judgments in this case is how difficult it is to know when a potential adjustment ceases to be reasonable. There are notable differences in the views of the Supreme Court Judges who heard the case. When faced with considering adjustments involving your own employees (and service users) do consider very carefully whether you can make the adjustment and why you believe it is not reasonable for you to do so (if that is the case).  If the Supreme Court Judges can’t even agree, that doesn’t provide you with much reassurance when trying to decide where the line is, but we are happy to help and provide guidance to assist you in making the best decision when faced with your own difficult circumstances.

If this case raises any issues for your organisation, please do not hesitate to speak to your usual contact in the Weightmans employment, pensions and immigration team, or contact Phil Allen (phil.allen@weightmans.com).

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