1. Transport, Paulley and the EqA 2010
Catherine Casserley
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2. This presentation Relevant Provisions of the Equality Act 2010
Paulley v FirstGroup PLC
Future?
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3. EqA
Consolidation legislation, bringing together anti-discrimination legislation
Makes it unlawful to discriminate on the basis of protected characteristics in a variety of life areas
Employment and occupation (work), goods and services (including transport), premises, education, private associations
Also imposes an obligation on those carrying out public functions to have due regard to certain equality objectives – s.149
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4. Transport Accessibility Regulations and approval certificates(Part 12)
Carriage of Assistance Dogs (Part 12)
Discrimination Provisions (including harassment)
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5. Duty to make reasonable adjustments
Common basic definition, section 20 with detail in schedules (Schedule 3 – work; Schedule 2 – services and functions; Schedule 4 – premises; Schedule 13 – education; Schedule associations)
The first requirement is a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.
The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.
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6. Duty to make reasonable adjustments
The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.
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7. Duty to make reasonable adjustments
Cannot make a disabled person pay for reasonable adjustments (s.20(7);
Where first or third requirement relates to provision of information, the steps which it is reasonable to have to take include steps for ensuring that the information is provided in an accessible format
In the second requirement, a reference to avoiding a substantial disadvantage includes a ref to removing, altering or providing a reasonable means of avoiding a feature
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8. Reasonable adjustments – Goods and services
Goods, facilities services and functions – Schedule 2
2 (1) A must comply with the first, second and third requirements.
(2) For the purposes of this paragraph, the reference in section 20(3), (4) or (5) to a disabled person is to disabled persons generally.
(3) Section 20 has effect as if, in subsection (4), for “to avoid the disadvantage” there were substituted—
“(a) to avoid the disadvantage, or
(b) to adopt a reasonable alternative method of providing the service or exercising the function.”
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9. Goods facilities services– how it works
What it is that is unlawful:
Provision of services, etc. (s.29)
(1) A person (a “service-provider”) concerned with the provision of a service to the public or a section of the public (for payment or not) must not discriminate against a person requiring the service by not providing the person with the service.
(2) A service-provider (A) must not, in providing the service, discriminate against a person (B)—
(a) as to the terms on which A provides the service to B;
(b) by terminating the provision of the service to B;
(c) by subjecting B to any other detriment.
(3) A service-provider must not, in relation to the provision of the service, harass—
(a) a person requiring the service, or
(b) a person to whom the service-provider provides the service
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10. Transport Services provisions don’t apply to ships and hovercraft
Services provisions don’t apply to transporting people by air or services provided on planes (and see Stott v BA)
Reasonable adjustment provisions do not extend to physical features in relation to trains, Public Service Vehicles (buses and coaches), and only to a limited extent in relation to hire cars (e.g. hand controls, fixed seating)
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11. Cases Roads v Central Trains Ltd [2004] EWCA Civ 1541
Ross v Ryanair and Stansted Airport Ltd [2004] EWCA Civ 1751
Policy of the Act is not a minimalist one
Finnigan
Akerman-Livingstone
Samuels
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12. Allen v Royal Bank of Scotland
Importance of injunctive relief
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13. Allen v Royal Bank of Scotland - outcome
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14. Paulley v First Group PLC
Paulley v First Buses – [2017] UKSC
Policy of first come first served
Dispute between the court as to what the Recorder had decided
Majority held not reasonable to require someone to move [risk of confrontation]
But it was not enough for First Group, as the Respondent had contended, to instruct its drivers simply to request non wheelchair users to vacate the space and do nothing further if the request was rejected
Breach of the Act; tho no compensation (no discrimination)
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15. Paulley v First Group PLC
Passengers can be told that it is a requirement that they move (Lord Toulson at 83] .
Where a passenger is being unreasonable, drivers should consider stopping the bus for a few minutes “with a view to pressurising or shaming the recalcitrant non wheelchair user to move” [Neuberger 66 – 67].
Whilst there may be difficulty in securing reasonable adjustments in the face of competing demands this was not a reason for not putting it into practice – see Toulson at [83]
On appropriate facts, there might be an absolute rule [47]
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16. Paulley v First Group PLC
Minority judgments more progressive
Transport providers need in any event to make changes
Policies
Training
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17. The Future Amendment of the legislation (driver conduct regs?)
More Transport Claims?
On the right facts, a successful claim
Request; repeat; record/write down and recall.
Complain
Questions?????
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