Two recent County Court cases have resulted in conflicting judgments over whether bus companies should give priority to wheelchair users over mothers with prams and pushchairs. The cases centred on whether a bus company's duties under the Equality Act 2010 required that they insist that mothers collapse their pushchair and vacate the space, even if the child is sleeping, when it is required by a wheelchair user or whether the space should be made available to both types of user on a first come first serve basis.
Equality Act (2010)
The Equality Act (2010) consolidated previous anti-discrimination laws and protects a person by making it unlawful to discriminate, harass or victimise them because of a protected characteristic. Protected characteristics under the Equality Act (2010), chapter 1 are:
It can be seen that both disability and pregnancy and maternity are protected characteristics. A woman is protected from discrimination on the grounds of pregnancy and maternity and service providers, such as bus companies, will be seen as discriminating against a pregnant woman if they treat her unfavourably because of her pregnancy and if, within the period of 26 weeks from the date of birth, they treat her unfavourably because she has given birth (Equality Act, 2010; section 17). Regrettably, parliament restricted the protection from discrimination for maternity care to the first 26 weeks from the birth of the child. Unfavourable treatment of a woman when the child is older than 26 weeks will not be subject to the provisions of the Act unless another protected characteristic is engaged.
A person is disabled for the purposes of the 2010 Act if they have a physical or mental impairment that has a substantial and long-term adverse effect of their ability to carry out normal day to day activities (Equality Act, 2010; section 3). A service provider, such as a bus company, will be seen as discriminating against a person with a disability if they treat that person less favourably because of the disability (Equality Act, 2010; sections 13 and 15). In addition, the service provider has a duty to make reasonable adjustments to ameliorate the effect of the disability. The aim is that steps are taken to ensure those with a disability, including wheelchair users, are able to have equal access by reducing or removing the substantial disadvantage they would otherwise face because of their disability (Equality Act 2010; section 20). The duty to make reasonable adjustments means that a person can be treated more favourably than a person without a disability if this is reasonably required to overcome come a serious disadvantage (Price v United Kingdom (33394/96) [2001]).
On buses, this includes step-free access doors that can be lowered to pavement level and seat-free areas where a wheelchair can be safely parked for the journey.
Lawfulness of first come first served
Both cases before the County Court considered whether the duty to make reasonable adjustments included a requirement to ask mothers to vacate the seat-free area of a bus when it was required by a wheelchair user.
In Black v Arriva North East Ltd [2013], two wheelchair users were unable to travel on buses because pushchairs were occupying the wheelchair spaces and the mothers refused to move when asked by the driver because the children in each case were asleep. The bus company operated a first come first served policy for the seat free areas on the buses and while their drivers were prepared to ask mothers to fold their pushchairs and vacate the area, they would not force them to do so if they refused.
The wheelchair users argued that this policy amounted to a failure to make reasonable adjustments in breach of the Equality Act (2010) and that the bus company should have made some 12 adjustments to their policy that would have been reasonable, including making vacating the space for wheelchair users compulsory and insisting passengers could only board if prams and pushchairs were folded. In considering each potential adjustment, HHJ Bowers held that the policy used by the bus company contained sufficient adjustments or that what was being proposed, such as providing a taxi for a mother and child who had to give up their place in a seat-free area, was not reasonable. In addition, it was held that the disadvantage faced by the wheelchair users could not be considered substantial and so did not engage the duty to make further adjustments.
The judge found that any person might not be able to board a bus because it was already full or there was insufficient space and they would have to wait for the next service. In the case of this happening to a wheelchair user, the bus company radioed the next bus to ensure that there was space available. Therefore, while some disadvantage was faced by the wheelchair user, it was not substantial as another bus arrived shortly afterwards and the case was dismissed. Mothers with pushchairs and wheelchair users could use the seat-free space on a first come first serve basis.
In Paulley v First Group plc [2013] a wheelchair user was also unable to board a bus because the space was occupied by a pushchair whose owner refused to move when asked by the driver because the child was asleep. The wheelchair user had to wait for the next bus, causing him to miss a train and arrive over an hour late for a family lunch. The bus company in this case also operated a first come first serve policy for the use of the space.
Although the facts in the case were similar to those in Black v Arriva North East Ltd [2013], the judge, Recorder Isaacs, held that the bus company was required to operate a priority policy with regard to the wheelchair space and that it was required to pay more than ‘mere lip service’ to prioritising the use of the space by wheelchair users. The judge further held that the Equality Act (2010) requires positive action to be taken in favour of disabled persons so a non-disabled person, including mothers with sleeping children in pushchairs, cannot complain of less favourable treatment or disadvantage where more favourable treatment is given to disabled users.
Clear signage and terms and conditions for carriage should have set out this priority policy on buses so passengers were aware of the designated use of the wheelchair space and would allow drivers to enforce the priority by insisting pushchair owners move when the space is required for a wheelchair user. This implies that the driver should have ejected the mother, child and pushchair from the bus if she refused to vacate the space to give priority to a wheelchair user. Indeed, the judge awarded some £5 500 for injury to feelings to the inconvenienced wheelchair user even though the judge accepted that the driver in question had been courteous and professional throughout the incident.
The differing outcomes in Black and Paulley means the confusion continues and leaves open the question of whether wheelchairs should be given priority over pushchairs on buses. An end to the uncertainty is in sight however, the Court of Appeal has now granted leave to appeal the Black case (Black v Arriva North East Ltd [2013]) and when heard the appeal will finally provide a binding precedent for bus companies to follow.