Firstgroup Plc v Paulley

Supreme Court upholds Doug Paulley's case against Firstgroup Plc to a limited degree

The main issue of the case concerned reasonable adjustments under the Equality Act 2010 and whether a bus company’s policy, or “provision criterion or practice” (PCP) met this in relation to wheelchair users. In particular, it was concerned with whether a bus driver should compel other passengers, disabled or non-disabled, to vacate a wheelchair space if it is required by a wheelchair user.

Supreme Court decision

The case was heard as FirstGroup Plc (Respondent) v Paulley (Appellant) [2017] UKSC 4


The Supreme Court unanimously allows Mr Paulley’s appeal, albeit only to a limited extent.  The scope of this limited extent is that FirstGroup’s policy requiring a driver to simply request a non-wheelchair user to vacate a wheelchair space without taking any further steps was unjustified. Where a driver who has made such a request concludes that a refusal is unreasonable, he or she should consider some further step to pressurise the non-wheelchair user to vacate the space, depending on the circumstances.

Under section 29 of the 2010 Equality Act, as a “public service provider”, FirstGroup must not discriminate against a person requiring its services by not providing the person with the service, and it must make “reasonable adjustments” to avoid substantial disadvantage to disabled persons. The decision states reasonable adjustments do not require:

  • An absolute rule that any non-wheelchair user must vacate a wheelchair space – or further, get off a bus, or
  • A qualified rule (i.e. that any non-wheelchair user must vacate a space if it is reasonable) implemented through mandatory enforcement - note: DR UK tried to get amendments made to the bus conduct regulations which recommended this approach.

The court favoured an approach which avoided confrontation with other passengers (not least where the non- wheelchair user vacating the space affected other travellers) and delay.

What the court thought FirstGroup’s PCP should have advised the driver

  • It was not enough for FirstGroup to instruct its drivers simply to request non-wheelchair users to vacate the space and do nothing further if the  request was rejected
  • The approach of the driver must depend upon the circumstances, but where he or she concludes that the refusal is unreasonable, some further step to pressurise the non-wheelchair user to move should be considered, such as rephrasing the request as a requirement (especially where the non-wheelchair user could move elsewhere in the bus) or even a refusal to drive on for several minutes


The restoration of damages initially awarded to Doug Paulley by Leeds County Court was not upheld because the recorder did not specifically consider whether, if FirstGroup had simply required its drivers to be more forceful, there was a prospect that it would have made a difference in this case. It is therefore not possible to conclude that there would have been a real prospect that such an adjustment would have resulted in Mr Paulley not being placed in the disadvantage that he was, and so an award of damages is not possible.

Background to the Supreme Court case

Mr Doug Paulley, a wheelchair user, was not allowed to board a bus on 24 February 2012, because a wheelchair space was occupied by a woman with a sleeping child in a pushchair, who refused to move. The driver also would not allow Mr Paulley to fold down his wheelchair and use an ordinary passenger seat, because the wheelchair could not be secured and was a safety hazard. 

Mr Paulley sued FirstGroup for unlawful discrimination against him on the ground of his disability. He was successful and Leeds County Court awarded him £5,500 in damages.

The judge found that FirstGroup’s PCP placed Mr Paulley at a substantial disadvantage by comparison with non-disabled bus passengers. He found that FirstGroup could have made reasonable adjustments which would eliminate that disadvantage. These adjustments would require a non-disabled passenger (which the Court of Appeal held to mean non-wheelchair user) occupying a wheelchair space to move from it if a wheelchair user needed it. On failure to do this the non-disabled passengers would be required to leave the bus.

FirstGroup’s conditions of carriage do not give a driver power to require (as oppose to request) a passenger to move out of the wheelchair space, or to leave the bus if he or she refuses to do so.

The Court of Appeal

FirstGroup appealed the County Court decision. Originally this case was to be heard with Black and Others v Arriva North East Ltd, which although based on similar facts, found there was no unlawful discrimination against a wheelchair user. However the appeal in Black was withdrawn.

The Court of considered the following law and guidance:

  • The Public Service Vehicles (Conduct of Drivers, Inspectors, Conductors and Passengers) Regulations 1990 (“the Conduct Regulations”) – which discusses circumstances in which a passenger can be asked to leave a bus or be ejected by the police.
  • The Disability Discrimination Act 1995 (DDA) - which allowed a wheelchair user to board and occupy a wheelchair space under certain circumstances.
  • The Equality Act 2010 (EA) – which supersedes and incorporates the DDA. The EA governs cases of alleged discrimination on the ground of disability and requires those who provide services to make reasonable adjustments to prevent discrimination.
  • Government Guidance on the Conduct Regulations – which were written before the EA but which have not been amended since.

The Court makes it clear that the question to consider is not simply whether a disabled person is at a substantial disadvantage to a non-disabled person under the Equality Act, but whether the bus company’s PCP puts him at that disadvantage. In deciding in favour of FirstGroup the Court found that the Conduct Regulations, specifically regulation 12:

“.. imposes no duty at all on passengers (as opposed to the driver), and the duty imposed on the driver does not allow him to turn passengers off the bus.”

The only passengers who can be required to leave are those covered under regulation 6 of the Conduct Regulations, including those who:

  • put at risk or unreasonably impede or cause discomfort to any person travelling on or entering or leaving the vehicle
  • smoke
  • cause a nuisance
  • are exceeding the maximum seating or standing capacity
  • are in a condition which is likely to cause offence to a reasonable passenger
  • have an animal that the driver wishes removed
  • have “any bulky or cumbersome article” the driver wishes removed – the Court did not think a child in a pushchair fitted this description

The court also referred to the Conduct Regulations guidance issued to bus companies, which does not recommend that non-wheelchair users be asked to move in every case.

“This may not be practical if, for example, the vehicle is nearing its capacity or passengers with baggage or a baby buggy are using the space.”

The Court of Appeal rejected the County Court ruling because it left no discretion to the driver but to eject a passenger who refused to move from a wheelchair space though, in reality, this was not legally enforceable. FirstGroup’s PCP put the responsibility with the driver and was found to be adequate.

Lord Justice Lewison said:

“66. The upshot of all that is that we must start from a notional, pre-adjustment, PCP which put disabled wheelchair users at a substantial disadvantage compared with non-disabled persons.  The adjustment which FirstGroup made to that PCP was to have a policy that wheelchair users should be given priority as regards the use of the wheelchair space, with that policy being given effect to by signs asking non-wheelchair users to give up the space if it was needed for a wheelchair user reinforced by a request from the driver if necessary.  In this context the word “request” does not mean simply asking a favour: the driver is conveying to the non-wheelchair user that they ought to move because the space is meant for wheelchair users and they have priority.  The issue is whether section 20 (3) required FirstGroup to go further by having a policy that the non-wheelchair user should be not only “requested” but “required” to move – the essence of that distinction being that a “requirement” will if necessary be enforced whereas a “request” will not. 

67. On that issue I agree with Lewison LJ’s reasoning and conclusion at paras. 41-56 of his judgment.  The Judge’s distinction breaks down when one tests what it means in practical reality.  As Lewison LJ demonstrates, the criminal law (in the form of the Conduct Regulations) gives the company – in practice the driver – no reliable means of enforcing any “requirement”; still less would introducing an explicit contractual term in the conditions of carriage do so.  In truth a “requirement” has no more teeth than a “request”.  To hold that FirstGroup was in breach of its duty to make reasonable adjustments because it did not have a policy of enforcing a requirement to vacate the wheelchair space is in those circumstances unsustainable.”  

Lady Justice Arden concurred

277. The bus company is faced with the problem that, as Lewison LJ has explained with care and clarity, Parliament has not given bus drivers any power to compel a person to move from the wheelchair space.  A rule of “wheelchair first in the wheelchair space” would not carry the force of law.  In those circumstances, in my judgment, the duty to make reasonable adjustments does not require the bus company to have such a rule.” 

Lady Justice Arden made the following suggestions for ensuring adjustments for people using wheelchairs are reasonable.

80. So the bus company must take all reasonable steps short of compelling passengers to move from the wheelchair space. We have not had argument on this but provisionally I consider that the bus company must provide training for bus drivers and devise strategies that bus drivers can lawfully adopt to persuade people to clear the wheelchair space when needed by a wheelchair user.  Bus drivers have to use their powers of persuasion with passengers who can move voluntarily.  The driver may even decline for a short while to drive on until someone moves out of the wheelchair space.  There is no risk of liability to such passengers in requesting them (firmly) to move, if they can, because if they cannot safely do so, they will not do so.  The bus company should also have an awareness campaign and put up notices designed to make other passengers more aware of the needs of wheelchair users.  It might also have to conduct surveys to find out when people are likely to travel and what their needs are so that it can do what it can to provide an appropriate number of buses for everyone. 

81. These steps are only common sense, and no-one has suggested that FirstGroup does not do these things.  They are not part of Mr Paulley’s case:  he has limited his case to requiring the bus company to require people to get off the bus when necessary so that a wheelchair user can get on.”