Increased focus on workplace racism calls for employers to take immediate action
Friday, 27th January 2017
In FirstGroup Plc v Paulley  the Supreme Court was asked to assess an appeal by a wheelchair user. The issue arose from the refusal of a passenger with a pushchair to give up a wheelchair space in favour of the wheelchair user. The Supreme Court held that the operating company had not taken enough action to protect the disabled customer and simply placing a sign requesting non-wheelchair users to give up a wheelchair space was not enough.
Under the Equality Act 2010 companies have a duty to make "reasonable adjustments" in certain circumstances. Where a practice of the company puts a disabled person at generally substantial disadvantage, the company is required to take such steps as it is reasonable to avoid the disadvantage (Schedule 2(2), EQA 2010)
In deciding what the reasonable steps should have been a court will assess the Equality Act 2010 Code of Practice: Services, public functions and associations published by the Equality and Human Rights Commission. The code is a non-exhaustive list but gives good examples of steps companies should look to enforce.
Mr Paulley, a wheelchair user, attempted to board a First Group bus which was particularly busy. The designated wheelchair space was occupied by a women and a pushchair containing a sleeping child. When asked to move for Mr Paulley she refused. When the bus driver asked her to move she refused again and Mr Paulley was asked to leave the bus as there was no space for him as was the bus operator's policy.
Mr Paulley therefore brought a claim against the bus operator for discriminating against him on the grounds of his disability. In the first instance the court found in favour of Mr Paulley stating that the request for the customer to move was not enough. The court went onto say that to eliminate the potential disadvantage to disabled customers the company should have altered its conditions of carriage which would require a non-disabled customer to move should a disabled customer need it.
The bus operator appealed the decision and it was overturned by the Court of Appeal. Mr Paulley then appealed to the Supreme Court. On assessing the circumstances the appeal was allowed. The judges agreed with the Court of Appeal that it was unfair to require the operator to adopt a policy that could lead to a non-disabled customer being ordered to move however it was stated that simply having a sign and having the drivers request passengers move is insufficient. Where a drivers request had been refused the bus operator had to have a policy that gave a practical next step such as stopping the bus with a view to pressuring the non-wheelchair user to give way. There were, however, divisions amongst the judges as to the exact remedy that the company should have put in place.
The overturning of the Court of Appeal and the divisions of opinion amongst the judges illustrate that this issue is far from straightforward. The judgment may be of wider application to other customer based companies who should assess whether or not their internal policies are sufficient enough to take all reasonable steps to ensure disabled customers are not discriminated against. In addition companies must ensure that not only are appropriate polices in place but all that staff have been trained on how to enforce the policies.