Bus drama: Supreme Court considers reasonable adjustments

This month's tube strike caused utter chaos for commuters around London, with people embarking on lengthy journeys which felt like pilgrimages to get themselves to work. I decided to blow the dust off my bike and managed to cycle in, feeling very smug indeed as I sped past the hordes of people patiently (or not so patiently) waiting at bus stops. All kinds of people were waiting at the bus stop, from mothers and babies, to the elderly, to those in wheelchairs and people who were clearly determined that they needed to get to work on time and therefore took priority over everybody else. As I cycled along, I wondered how they would all manage to squeeze themselves in to the already crowded buses.

Last week, the Supreme Court considered in the case of FirstGroup Plc v Paulley [2017] whether a passenger on a bus with a pushchair should be required to give the space up for a wheelchair user. The Supreme Court did not find that a bus company must require a non-disabled passenger to move from a wheelchair space in every case, but it ruled that there will be occasions where the duty to make reasonable adjustments will put other non-disabled individuals at an inconvenience. This case was previously considered by the Court of Appeal and that decision was overturned by the Supreme Court, illustrating that the case was a complex one. The ruling means that bus companies will have to do more than simply request that non-disabled passengers vacate the space, although it did not require bus operators to remove non-disabled passengers who unreasonably refuse to vacate the space. Bus drivers will have to determine how to proceed depending on the particular circumstances.

A quick recap

I thought that this case provided the opportunity for a helpful reminder of the duty imposed on employers by the Equality Act 2010 to make reasonable adjustments to help disabled job applicants, employees and former employees in certain circumstances.

The duty can arise where a disabled person is placed at a substantial disadvantage by:

•An employer's provision, criterion or practice (which includes formal and informal practices, policies and arrangements)
•A physical feature of the employer's premises
•An employer's failure to provide an auxiliary aid

However, an employer would not be obliged to make reasonable adjustments unless it knows or ought reasonably to know that the individual in question is disabled and likely to be placed at a substantial disadvantage because of their disability.

An employment tribunal will objectively determine whether a particular adjustment would have been reasonable to make in the circumstances. It will take into account matters such as whether the adjustment would have improved the disabled person's disadvantage, the cost of the adjustment in light of the employer's financial resources, and the disruption that the adjustment would have had on the employer's activities.

Impact of the judgment

The impact of this judgment could extend beyond bus operators to other service providers with wheelchair spaces or facilities, such as supermarket car parks, and disabled toilets on trains. Bus operators and other such service providers should review their policies and ensure that a possible detrimental impact on non-disabled employees should not be the deciding factor when determining whether it is reasonable to make an adjustment for a disabled employee.