Disability Discrimination: Reasonable adjustments and correct comparator

Thanks to Ed McFarlane of Deminos HR for preparing this case summary Is it a reasonable adjustment under the Equality Act 2010 to require a bus company to have a policy requiring non-wheelchair using passengers to move if occupying a space required by a wheelchair user? No, held the Court of Appeal in FirstGroup PLC v Paulley, in a widely reported judgment. Mr Paulley, a wheelchair user, was unable to take a bus due to a passenger keeping a child's buggy in the wheelchair space. Mr Paulley argued for a reasonable adjustment changing the bus company's unenforceable policy requesting passengers to move from the wheelchair space, to one requiring passengers to move when necessary. The Court noted that an absolute policy would be "unworkable in practical terms", there was no power in law for bus companies to enforce such a policy, it would not be a 'reasonable adjustment'. However, Arden LJ noted that bus companies "must take all reasonable steps short of compelling passengers to move from the wheelchair space". The Court split on what had put Mr Paulley at a disadvantage, the majority (Underhill and Arden LJJ) held it was the (agreed) provision, criterion or practice 'PCP' applied by the bus company of a policy of giving priority to wheelchair users for wheelchair space, but that space was filled on a 'first come first served' basis. Lewison LJ in the minority regarded Mr Paulley as being put at a disadvantage not by the PCP, but by the design of the bus with one wheelchair space, and regulations which prohibited a wheelchair from being carried other than in the designated space. Arden LJ indicated that asking Parliament to look at the law was the proper remedy.