To what extent do you need to make Reasonable Adjustments for disabled employees & customers?
In a recent case decided by the Court of Appeal the question of reasonable adjustments for disabled persons has been considered again but this time it was in the context of a service provider rather than an employer/employee relationship.
The Equality Act 2010 provides an obligation on public service providers to make ‘reasonable adjustments’ in certain circumstances.
As with the protection for employees, if a service provider has a provision, criterion or practice which puts disabled persons at a substantial disadvantage compared to persons who are not disabled, a service provider must take reasonable steps to avoid the disadvantage.
The Equality Act 2010 Code of Practices: Services, public functions and associations, which has been published by the Equality & Human Rights Commission will be referred to by the Court when deciding what are reasonable steps for a service provider to take.
With regards to the extent of the obligation to make reasonable adjustments the Code of Practice states as follows:
“7.29 The duty to make reasonable adjustments places service providers under a responsibility to take such steps as it is reasonable, in all the circumstances of the case, to have to take in order to make adjustments. The Act does not specify that any particular factors should be taken into account. What is a reasonable step for a particular service provider to have to take depends on all the circumstances of the case. It will vary according to:
- the type of service being provided;
- the nature of the service provider and its size and resources; and
- the effect of the disability on the individual disabled person.
7.30 However, without intending to be exhaustive, the following are some of the factors which might be taken into account when considering what is reasonable:
- whether taking any particular steps would be effective in overcoming the substantial disadvantage that disabled people face in accessing the services in question;
- the extent to which it is practicable for the service provider to take the steps;
- the financial and other costs of making the adjustment;
- the extent of any disruption which taking the steps would cause;
- the extent of the service provider’s financial and other resources;
- the amount of any resources already spent on making adjustments; and
- the availability of financial or other assistance.”
In this case Mr Paulley, who is a wheelchair user pursued a claim in the County Court against FirstGroup PLC in respect of the provision of bus services.
Mr Paulley had been unable to board a bus because the wheelchair space on the bus was occupied by a lady with a sleeping child in a pushchair. The driver asked the lady to move from the space but she refused to do so and Mr Paulley could not travel on that bus.
FirstGroup’s policy was that other customers would be asked to vacate the wheelchair space by the driver but if the passenger refused to move they could not board a wheelchair user. Mr Paulley claimed that this policy was a provision, criterion or practice which put him at a substantial disadvantage.
At the County Court the Judge agreed with Mr Paulley and that FirstGroup should have altered their terms of carriage of passengers to require a non-disabled person to vacate a wheelchair space and an enforcement policy if the passenger refused.
FirstGroup appealed against the decision.
At the Court of Appeal FirstGroup’s policy was analysed further and the following questions considered:
- What was FirstGroup’s provision, criterion or practice?
- Did that provision, criterion or practice put disabled persons generally at a substantial disadvantage?
- What is a reasonable adjustment?
The Court of Appeal considered that the provision, criterion or practice of FirstGroup was in fact their ‘first come, first served’ policy, namely that the passenger already on the bus will be able to continue even if they refused to move from a wheelchair space.
This policy put a person with Mr Paulley’s disability at a disadvantage, i.e. a person in a wheelchair, rather than other disabled persons, such as the visually impaired.
After establishing what the policy was and that it placed Mr Paulley at a disadvantage the Court of Appeal considered reasonable adjustments.
They decided that the proposed adjustments to the terms of carrying passengers was not effective or practical. There were various reasons why changing the terms so that the driver could lawfully eject a passenger who refused to move would not be practical. Essentially what Mr Paulley had been asking with his proposed reasonable adjustment would be for the bus driver to have to adjudicate between competing claims for priority from passengers.
In addition there were various potential disruptions that could be foreseen by practically applying the adjustment proposed. One of those hearing the case, Lord Justice Lewison, ran through a number of situations when the proposed change would cause considerable disruption;
- A family with heavy luggage are made to leave the bus to make way for a single wheelchair;
- A person on their way to an appointment or for a connection is asked to leave for a wheelchair user who is not in a hurry;
- A person who has some other form of disability but is not a wheelchair user is asked to leave the bus causing considerable potential distress;
- Five or six people are occupying the wheelchair space on a crowded bus and are asked to leave to accommodate one wheelchair user, whilst other passengers are also left at the bus stop.
As a result FirstGroup’s appeal was upheld.
Points to note
This case is a useful reminder of the obligation upon service providers to their disabled users under the Equality Act 2010.
The key point to note from this is that if you believe that you have a provision, criterion or practice that may disadvantage disabled users or employees there is no absolute requirement to implement adjustments if they would not be practical or would cause considerable disruption to service.
What you should however do is take time to reasonably consider any reasonable adjustments that can be made and ways in which disadvantages can be avoided.
There are organisations who will help you to consider the options and ensure that you avoid liability.
If you would like to read the full judgement of this case you can do so by clicking the link here.
You can also read the Equality and Human Rights Commission Code of Practice here