The sensitive and sometimes controversial subject of disability discrimination finds itself back in the spotlight following the Supreme Court’s recent ruling in Paulley v FirstGroup.
Although this case focussed on the duties of a bus operator to disabled customers it also includes wider lessons that are equally applicable for employers, as well as other service providers.
For those who have not followed the case, Mr Paulley is a wheelchair user. Way back in February 2012 he sought to catch a FirstGroup bus. The vehicle had a designated space for wheelchair users, but this was occupied by a young woman and her sleeping baby. Pointing to difficulties in folding her baby buggy she refused to move, meaning Mr Paulley was unable to board the bus.
As a result of this unhappy experience, Mr Paulley raised a claim against FirstGroup for failure to meet their obligations to him as a disabled person. One of the grounds relied on will be familiar to all employers: the duty to make reasonable adjustments in terms of the Equality Act.
The case, which received a considerable amount of media attention, focussed on FirstGroup’s practices in relation to accommodating wheelchair users. As we have seen, FirstGroup ensured there were designated spaces on their buses.
These were supported by a sign saying “Please give up this space if needed for a wheelchair user." Mr Paulley claimed this was insufficient.
In particular his lawyers maintained that it was not enough for FirstGroup to request that able bodied passengers should free up the space, they should be required to do so.
The court had to decide whether FirstGroup should have gone further to assist Mr Paulley when faced with an incalcitrant passenger. The Supreme Court decided that FirstGroup had not done enough to fulfil their duties and so, Mr Paulley was successful.
As with many answers, this decision gave rise to more questions. Aficionados of Scottish music hall will be aware that you should not throw your grandmother off a bus but, could, and should, FirstGroup have required non disabled passengers to leave the bus to allow Mr Paulley to get on?
If not then what more should FirstGroup have done?
In reaching a conclusion on this point, the Supreme Court managed to ensure no one was particularly happy. No mean feat.
The decision was that the policy of “request but not require” was not sufficient. The court, however, refused to go as far as suggesting that bus companies were under obligation to always ensure able-bodied passengers occupying disabled spaces moved. Part of the thinking involved concern over the practicality of doing this, including the risk of violence.
In relation to what FirstGroup should do, the court suggested its policy could be tightened up by providing better training for drivers on how to deal with passengers who refuse to free up disabled spaces.
They also mentioned techniques that could be used to persuade, or even shame, individuals into moving such as refusing to drive on from the bus stop for a period of time, particularly if the bus was ahead of schedule (I will not comment on the extent of the eminent judges’ knowledge of public transport including the frequency of buses being early). This approach has been described as “require and pressurise”.
It will be apparent that rather than providing clear rules governing what is required in each case, the court fell back on the well known legal principle of “it depends on the circumstances”.
Those of us who seek certainty will no doubt be disappointed by this, but in fairness to the court their decision highlights one of the challenges with disability discrimination: it tends to be fact-dependent and, although clear guidance can be given, it can never be reduced to an all-embracing set of rules.
There are a couple of wider points to note from this.
The first is the question of how it can be legitimate to accommodate Mr Paulley at the expense of a fellow passenger. Aren’t equal opportunities all about treating everyone the same after all?
In nearly every other case governed by the Equality Act this is the central requirement.
This means positive discrimination is unlawful, no matter how well intentioned. The protection given to the disabled is radically different.
Disability discrimination legislation is not just focussed on treating everyone the same, it seeks to remove or at least reduce the disadvantages that a disabled person faces as a result of his or her disability. In the current case, the reason Mr Paulley could not get on the bus was the lack of free space for his wheelchair.
One way to remove this disadvantage would be to free up the space. The fact someone else was occupying the space and may therefore have been disadvantaged if persuaded to move does not defeat the argument. Accordingly when dealing with disability, positive discrimination is not only permissible, it is often obligatory.
The second point is that this inevitably gives rise to difficult judgment calls in relation to how far an employer of business is required to go. In reaching a decision it would be wrong to assume that we are fully protected from challenges if we follow sensible policies and procedures. Unfortunately there are often cases where this is not sufficient. The test as to whether an employer is meeting obligations to their employees, or businesses to its customers, can never be a tick box exercise.
It has to be about analysing the disadvantages caused by any disability, considering what steps could be taken to remove or reduce the disadvantages, and deciding to which extent the steps are reasonable.
This inevitably puts considerable onus on the employer or business, and judgement calls will often carry a degree of risk. This risk will, however, be reduced if we remember that we are dealing unambiguously with affirmative action.
If we appreciate this, and remember that we cannot treat disability protection as equivalent to all of our other equal opportunity commitments, we are well on the way of avoiding the type of judicial challenge which faced FirstGroup as well as many, often well intentioned, employers.
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