Can a TOC legally stop a passenger from travelling given that passenger's reason for travelling?

[Bletchleyite]

Moderator Note: Posts #1 - #4 originally in this thread:

Discussion of July 4 changes in England announced by Boris Johnson

As announced by Boris Johnson today: From 4 July pubs and restaurants will be allowed to open both indoors and outdoors if they put in safety guidelines including table service online. Other businesses allowed to reopen will be: Hotels, bed and breakfasts, campsites and caravan parks Hair...

www.railforums.co.uk

In England the situation is crystal clear. The legislation allows you to make any journey you like, to wherever you like, for whatever reason you like, by whatever method you like. The guidance asks you to consider a few things before you go (such as do I really need to go? Can I walk, cycle? etc.). But, there is nothing to compel you to undertake those considerations and there are no "correct" or "incorrect" answers on which you can be challenged. So, the TOCs have no legal basis on which to deny you travel.

This is not true. They have the same legal basis as any other business does - namely that unless the basis of the decision was discrimination against a legally protected characteristic, for example race or gender, any private business can refuse any custom it wishes with or without a reason.

It may be a breach of their franchise agreement, but that's a separate legal matter that is between the TOC and the Government, not between the customer and the TOC.

Whether this is morally right is for debate, but I can see no evidence of it being illegal.

 

[yorkie]

This is not true. They have the same legal basis as any other business does - namely that unless the basis of the decision was discrimination against a legally protected characteristic, for example race or gender, any private business can refuse any custom it wishes with or without a reason.

It may be a breach of their franchise agreement, but that's a separate legal matter that is between the TOC and the Government, not between the customer and the TOC.

Whether this is morally right is for debate, but I can see no evidence of it being illegal.

It absolutely would be illegal if they tried to do that.

But there is no evidence of this actually being done; it's just some rogue train companies refusing to acknowledge the official guidelines, which can be found here:

People with symptoms of a respiratory infection including COVID-19

Guidance for people with symptoms of a respiratory infection including COVID-19, or a positive test result for COVID-19.

www.gov.uk

Anyway I have split the schools posts into a new thread.

 

[Enthusiast]

This is not true. They have the same legal basis as any other business does - namely that unless the basis of the decision was discrimination against a legally protected characteristic, for example race or gender, any private business can refuse any custom it wishes with or without a reason.

It may be a breach of their franchise agreement, but that's a separate legal matter that is between the TOC and the Government, not between the customer and the TOC.

Whether this is morally right is for debate, but I can see no evidence of it being illegal.

I didn't say it would be illegal. I said it would be unlawful. There's quite a difference (cf Boris Johnson's proroguing of Parliament last year). Train operators cannot pick and choose which people they will agree to have as passengers. Although you keep insisting that they are, TOCs are not like any other business. They operate a national asset and (particularly at the moment when the railways are near enough a nationalised industry) are subject to government regulation. They cannot refuse to sell you a ticket on the grounds discussed and in particular once a passenger has bought a ticket (whether bought from the TOC or another agent), they and the train operator have entered into a contract which cannot be broken on those grounds. The government has not seen fit to ban "unnecessary" travel and I would suggest that any action taken against a TOC for refusal to allow travel would be bound to succeed on those grounds alone.

As Yorkie has said, there is no evidence that any such refusals have actually happened. That's almost certainly because the TOCs know that legally they have no basis to impose them. But they are displaying material and making announcements that lead the public to believe they cannot travel by train unless their journey meets certain criteria. And that is no way to help the economy to recover.

 

[43066]

This is not true. They have the same legal basis as any other business does - namely that unless the basis of the decision was discrimination against a legally protected characteristic, for example race or gender, any private business can refuse any custom it wishes with or without a reason.

It may be a breach of their franchise agreement, but that's a separate legal matter that is between the TOC and the Government, not between the customer and the TOC.

Whether this is morally right is for debate, but I can see no evidence of it being illegal.

I think this is basically right.

The difficulty TOCs have is that a blanket refusal might well constitute indirect discrimination against those groups who cannot tolerate wearing a face covering due to a disability (anxiety and autism being two such groups. It’s debatable whether anxiety would constitute a disability, but autism certainly does).

There’s also the issue of enforcement - TOC staff really shouldn’t be questioning people who say they fall within an exemption, and certainly don’t have the right to demand proof. And neither do the BTP, for that matter.

Of course what TOCs SHOULD be doing is encouraging as many fare paying passengers as possible to come back to the railway!

 

[ForTheLoveOf]

Moderator Note: Posts #1 - #4 originally in this thread:

Discussion of July 4 changes in England announced by Boris Johnson

As announced by Boris Johnson today: From 4 July pubs and restaurants will be allowed to open both indoors and outdoors if they put in safety guidelines including table service online. Other businesses allowed to reopen will be: Hotels, bed and breakfasts, campsites and caravan parks Hair...

www.railforums.co.uk

This is not true. They have the same legal basis as any other business does - namely that unless the basis of the decision was discrimination against a legally protected characteristic, for example race or gender, any private business can refuse any custom it wishes with or without a reason.

It may be a breach of their franchise agreement, but that's a separate legal matter that is between the TOC and the Government, not between the customer and the TOC.

Whether this is morally right is for debate, but I can see no evidence of it being illegal.

It isn't necessarily going to be illegal for a TOC to refuse to sell you a ticket, simply on the basis that it thinks your journey is contrary to their guidance. It might in some cases be illegal, but that would depend on the exact circumstances and reasoning given.

But it would certainly be a breach of contract and an illegal practice (under several laws) for TOCs to be denying people who have already bought a ticket the right to travel.

This is an entirely hypothetical situation because, apart from the ludicrous "tick-box exercise" (ha) you have to go through to access some Abellio TOCs' online booking sites, no TOC is refusing to sell tickets to people based on the reason for travel as far as I am aware. There may of course be individual instances of employees going counter to the rules but that is nothing new under the sun.

 

[43066]

But it would certainly be a breach of contract and an illegal practice (under several laws) for TOCs to be denying people who have already bought a ticket the right to travel.

Having a ticket does not give you an absolute right to travel. You are subject to national conditions of carriage etc. And you could be refused travel if heavily intoxicated, for example, or if you were being disruptive. Having a valid ticket would make no difference in these circumstances.

 

[Huntergreed]

Having a ticket does not give you an absolute right to travel. You are subject to national conditions of carriage etc. And you could be refused travel if heavily intoxicated, for example, or if you were being disruptive. Having a valid ticket would make no difference in these circumstances.

Indeed, but I do not believe the conditions of carriage contain anything that say a passenger may only travel on the railway for certain reasons and not others (unless this has been amended in the lockdown legislation?)

Out of curiosity, as the TOC's are no longer able to fulfill their end of the contract, if you are refused travel are you entitled to a refund on your ticket?

 

[43066]

Indeed, but I do not believe the conditions of carriage contain anything that say a passenger may only travel on the railway for certain reasons and not others (unless this has been amended in the lockdown legislation?)

No, I don’t believe so. But it’s important that people appreciate that just having a ticket does not convey an *absolute* right to travel.

Out of curiosity, as the TOC's are no longer able to fulfill their end of the contract, if you are refused travel are you entitled to a refund on your ticket?

That’s a good question. Strictly speaking travel has never been prevented, and services have continued to run throughout lockdown, so I suppose TOCs would have been within their rights to refuse to refund tickets! I’m certainly aware of people who had booked advanced tickets to travel to events which were cancelled as a result of lockdown, and were refused refunds.

As I understand it season tickets have been refunded for the period of lockdown - I’d imagine this is down to goodwill on the TOCs part, no doubt bankrolled by the government as part of the pseudo nationalisation of the network.

 

[ForTheLoveOf]

No, I don’t believe so. But it’s important that people appreciate that just having a ticket does not convey an *absolute* right to travel.

The NRCoT don't cover denial of travel. It is purely down to the Byelaws. Of course some kinds of obnoxious behaviour could result in you being rightfully denied travel but that is not what we are talking about here. We are talking about being denied travel on the basis of the purpose of the journey. That is not permissible.

That’s a good question. Strictly speaking travel has never been prevented, and services have continued to run throughout lockdown, so I suppose TOCs would have been within their rights to refuse to refund tickets!

Tickets can be refunded in full where a service is delayed or cancelled and the passenger no longer wants to travel. Certainly anyone denied travel would be entitled to a refund if that is what they wanted (alternatively they could claim for the reasonable cost of providing their own means of transport, e.g. a taxi).

I’m certainly aware of people who had booked advanced tickets to travel to events which were cancelled as a result of lockdown, and were refused refunds.

Advance tickets are normally non-refundable for change of mind circumstances. This was eased for Advance tickets bought before 23 March, which were made refundable without fee.

As I understand it season tickets have been refunded for the period of lockdown - I’d imagine this is down to goodwill on the TOCs part, no doubt bankrolled by the government as part of the pseudo nationalisation of the network.

Season ticket holders have always had the right to apply for a refund part-way through their ticket's validity. The only concession granted by the TOCs in this respect is that passengers could backdate the refund request to 23 March, or 56 days before applying, whichever was the later date.

This is an exceedingly stingy arrangement given that season refunds are not pro-rata, and that there is a perfectly legitimate alternative way of obtaining a bigger, pro-rata refund in most cases - doing a changeover to a very cheap route. It conveniently doesn't seem to have occurred to the industry that the wholesale halving (if not worse) of the timetable represented a repudiatory breach of contract entitling passengers to a fee-free pro-rata refund...

 

[43066]

The NRCoT don't cover denial of travel. It is purely down to the Byelaws. Of course some kinds of obnoxious behaviour could result in you being rightfully denied travel but that is not what we are talking about here. We are talking about being denied travel on the basis of the purpose of the journey. That is not permissible.

NRCoT also require you not to engage in criminal or anti social behaviour while on the network. Failure to wear a face mask without reasonable excuse is now a criminal offence, and I suppose it could be argued that’s it’s also anti social (although I would profoundly disagree with that argument!).

As per @Bletchleyite ‘s original post, there’s nothing to stop a TOC from refusing to sell you a ticket. Just as with any other business, they are entitled to turn away customers if they wish. This would be illegal if it constituted either direct or (unjustifiable) indirect discrimination, against those with protected characteristics. That is the reason why TOCs would be on very thin ice if they started imposing blanket refusals for those without face coverings.

Tickets can be refunded in full where a service is delayed or cancelled and the passenger no longer wants to travel. Certainly anyone denied travel would be entitled to a refund if that is what they wanted (alternatively they could claim for the reasonable cost of providing their own means of transport, e.g. a taxi).

Yes absolutely. But I suppose that doesn’t really apply to lockdown as services have continued to run throughout, albeit with a much reduced timetable.

Season ticket holders have always had the right to apply for a refund part-way through their ticket's validity. The only concession granted by the TOCs in this respect is that passengers could backdate the refund request to 23 March, or 56 days before applying, whichever was the later date.

No doubt the costs of these refunds have been absorbed by the government.

 

[ForTheLoveOf]

NRCoT also require you not to engage in criminal or anti social behaviour while on the network.

They do say that, but they don't state the penalty for breaching that term, so it's a bit pointless in reality. It's a matter dealt with by the Byelaws.

By contrast the face covering mandate is dealt with by a specific Regulation on most of the railway network (TfL feel the need to flex their muscles with a potentially unlawful Byelaw notice).

No doubt the costs of these refunds have been absorbed by the government.

All TOC outgoings are currently being met by the DfT, though I'm not privy to the details of precisely how this interacts with the exceedingly complex system for the administration and 'amortisation' of season ticket income.

 

[philosopher]

This is not true. They have the same legal basis as any other business does - namely that unless the basis of the decision was discrimination against a legally protected characteristic, for example race or gender, any private business can refuse any custom it wishes with or without a reason.

Discrimination on the basis of disability is illegal I believe. If a passenger can’t drive due to a disability, such as poor eyesight is turfed off a train for a non essential journey, I think a strong argument can be made that it is discrimination and hence illegal. In this case the passenger is effectively being deprived freedom of movement on the basis of a disability.

 

[Mag_seven]

As per @Bletchleyite ‘s original post, there’s nothing to stop a TOC from refusing to sell you a ticket. Just as with any other business, they are entitled to turn away customers if they wish. This would be illegal if it constituted either direct or (unjustifiable) indirect discrimination, against those with protected characteristics. That is the reason why TOCs would be on very thin ice if they started imposing blanket refusals for those without face coverings.

I would like to point out that the purpose of the thread is to talk about the legality of TOCs refusing travel by due to the passengers reason for travelling not anything else. I get the bit about the TOC refusing travel (legally) due to the passenger not wearing a face covering or being intoxicated etc but that's not the type of refusal to travel scenario we are talking about here.

Can any poster quote any legislation that allows a TOC to stop a passenger from travelling due that passengers reason for travelling?

 

[Enthusiast]

And you could be refused travel if heavily intoxicated, for example, or if you were being disruptive. Having a valid ticket would make no difference in these circumstances.

Yes but as mentioned we are not talking about that. I made clear in post #3 that it was on the grounds of the reason for travel that we are discussing.

But it’s important that people appreciate that just having a ticket does not convey an *absolute* right to travel.

I do appreciate that. You cannot kick off in an anti-social manner on a railway station and say "But it's OK because I've got a ticket!"

As per @Bletchleyite ‘s original post, there’s nothing to stop a TOC from refusing to sell you a ticket.

Well I believe there is. They would have to have a justification. They could, of course say that their trains were full (as far as "distancing" allows). They'd have to show that they were but even then they could not ration spaces on the basis of the purpose of the journey. There are at least three reasons for this: (1) They have no right to ask what the purpose of your journey is (2) You have no obligation to answer them even if they did and (3) There is no legislation which permits them to deny you travel on the grounds that you either refuse to state the purpose of your journey or that it is not, in their view, "essential". TOCs are not like pubs and shops (who can refuse to do trade with whoever they like, subject to discrimination legislation). If they want to ration their facilities to certain groups or journey purposes they will have to lobby Parliament to enact some specific legislation to enable them to do so.

...we can't just take nearly a third of the adult population and put them in the "doesn't matter" pile.

That's really the nub of the matter, and probably among the reasons why Parliament hasn't acted differently.

 

[Bletchleyite]

Well I believe there is. They would have to have a justification.

Nope, a business can refuse a customer for any reason (or none) other than one that is specifically illegal.

They could, of course say that their trains were full (as far as "distancing" allows). They'd have to show that they were but even then they could not ration spaces on the basis of the purpose of the journey. There are at least three reasons for this: (1) They have no right to ask what the purpose of your journey is (2) You have no obligation to answer them even if they did and (3) There is no legislation which permits them to deny you travel on the grounds that you either refuse to state the purpose of your journey or that it is not, in their view, "essential". TOCs are not like pubs and shops (who can refuse to do trade with whoever they like, subject to discrimination legislation). If they want to ration their facilities to certain groups or journey purposes they will have to lobby Parliament to enact some specific legislation to enable them to do so.

Nope, unless it's a breach of their franchise agreement, which it may or may not be.

 

[ForTheLoveOf]

Discrimination on the basis of disability is illegal I believe. If a passenger can’t drive due to a disability, such as poor eyesight is turfed off a train for a non essential journey, I think a strong argument can be made that it is discrimination and hence illegal. In this case the passenger is effectively being deprived freedom of movement on the basis of a disability.

Indeed; this is where the biggest area of risk lies for TOCs in having such policies as these. Such matters are often very finely balanced depending on the true reason and effect of such a ban - see for example Lee v Ashers Baking Company Ltd & ors [2018] UKSC 49, the Supreme Court case over Northern Irish bakers that refused to make a cake celebrating same-sex marriage.

In the end it was held that whilst it was clearly discrimination of some form, it wasn't unlawful discrimination because the discrimination was not on the basis of the customer's protected characteristic, but on the basis that the bakers wouldn't have made such a cake for any customer.

 

[ForTheLoveOf]

Incidentally that case is now being appealed to the European Court of Human Rights, so it's still not a settled area of law by any means. Either way, I strongly doubt that any head of the Legal Department at any TOC is having sleepless nights over this. Passengers just don't tend to take these things to Court; you just have to look at the farce of overcharged Penalty Fares that went on for over a year before it was flagged, and the TOCs very reluctantly refunded the amount overcharged (not even the whole Penalty Fare). No TOC has ever seen the inside of a Court over that fiasco.

 

[mmh]

I would like to point out that the purpose of the thread is to talk about the legality of TOCs refusing travel by due to the passengers reason for travelling not anything else. I get the bit about the TOC refusing travel (legally) due to the passenger not wearing a face covering or being intoxicated etc but that's not the type of refusal to travel scenario we are talking about here.

Can any poster quote any legislation that allows a TOC to stop a passenger from travelling due that passengers reason for travelling?

I think that question is better posed in reverse - legislation which disallows. Law is more often proscription than prescription.

 

[nedchester]

There have been instances where people have been asked the purpose of their journey though. Merseyrail is a well known example highlighted both here and elsewhere. My view is that you are under no obligation to supply this information as a condition of travel. I certainly would politely refuse.

That said on my couple of journeys on Merseyrail at the weekend I met no issues at all so maybe they have backed off now. Especially as they had to put on relief trains yesterday to get people to Southport!

 

[43066]

Can any poster quote any legislation that allows a TOC to stop a passenger from travelling due that passengers reason for travelling?

As per the below - it’s perfectly lawful for any business to turn away customers for any reason, unless this constitutes discrimination on the basis of a protected characteristic.

This is never normally an issue, of course, because no business in its right mind would turn away customers (at least under normal circumstances).

Yes but as mentioned we are not talking about that. I made clear in post #3 that it was on the grounds of the reason for travel that we are discussing.

I realise that, but I was responding to a poster who appeared to believe that a ticket confers an absolute right to travel. It does not.

Nope, a business can refuse a customer for any reason (or none) other than one that is specifically illegal.

I think that question is better posed in reverse - legislation which disallows. Law is more often proscription than prescription.

Correct!

 

[43066]

In the end it was held that whilst it was clearly discrimination of some form, it wasn't unlawful discrimination because the discrimination was not on the basis of the customer's protected characteristic, but on the basis that the bakers wouldn't have made such a cake for any customer.

This is a very important point that is lost on many people. Discrimination is perfectly lawful, and happens every day! Every time you apply for a job, the candidates who lack qualifications/experience are directly discriminated against in favour of those who have them.

Discrimination is only unlawful if it’s on the basis of a specifically prohibited ground.

 

[greyman42]

The TOC's have been making threatening noises for weeks about essential travel/key workers etc. It is to try to frighten people into not using their trains. I have been using the trains for the duration of this period and have never encountered any problems from train or gate staff.

 

[Enthusiast]

Nope, a business can refuse a customer for any reason (or none) other than one that is specifically illegal.

TOCs are not "businesses" in the normally accepted sense of the word. They cannot simply decline custom unless they have a justified reason. By your reasoning I could pitch up at my local station to be told "We're not allowing you to travel today as we don't like the colour of the shirt you are wearing." Or even "We're not allowing you to travel today because we're not". It would almost certainly breach their franchise agreement and at the moment they are under greater regulation than normal. To help you perhaps accept this TfL was told in no uncertain terms that they must not persist with the "essential journeys/key workers" message as a condition of their £1.6bn bailout. It was clear that the government did not intend such a condition to be imposed on London's Transport. London Underground Ltd is a private limited company. London's buses are run by private companies. But they cannot act as you suggest. They run a strategically important transport system and, whilst the Mayor ostensibly has control, the government ultimately decides its policies. So it is with the railways and the government has decided that "unessential" travel is permitted.

I think that question is better posed in reverse - legislation which disallows. Law is more often proscription than prescription.

I don't think that's quite appropriate. The purpose of trains is to convey people. The government allows companies, by agreement, to operate them. It also provides taxpayers' money to many parts of the industry to enable it to function properly. To simply allow those companies to decline customers the use of this national asset without justification because there is no legislation saying they cannot do so would be plainly absurd and not something I could imagine any court agreeing with.

We're obviously not going to agree on this and I've done all I can to convince you of my viewpoint. I will only add this: it's quite clear that a number of TOCs do not welcome passengers at the moment. They don't need them; they have a guaranteed income stream for the time being; why bother catering for passengers when you manage without them - especially if you have to make special arrangements because of the current situation? I imagine the very best strategy for them would be to deny travel to as many people as they can. But as far as we know none of them has. I can only assume this is because they know they cannot. But they are doing their best to discourage customers by their messaging suggesting that only "essential" journeys can be made.

 

[mmh]

I don't think that's quite appropriate. The purpose of trains is to convey people. The government allows companies, by agreement, to operate them. It also provides taxpayers' money to many parts of the industry to enable it to function properly. To simply allow those companies to decline customers the use of this national asset without justification because there is no legislation saying they cannot do so would be plainly absurd and not something I could imagine any court agreeing with.

Well yes, I agree. I think some become too fixated over the law when in reality there are things which just aren't allowed to happen as they're societally or politically unacceptable regardless of what is in law, but the question was whether or not legislation would allow or disallow stopping a journey based on what the journey is for.

It's academic anyway, the real answer is a Government can introduce laws to do it if they want to, without even a vote. The past few months should make that apparent!

 

[Bletchleyite]

TOCs are not "businesses" in the normally accepted sense of the word. They cannot simply decline custom unless they have a justified reason. By your reasoning I could pitch up at my local station to be told "We're not allowing you to travel today as we don't like the colour of the shirt you are wearing." Or even "We're not allowing you to travel today because we're not".

You've actually stumbled across a good example there - it's quite likely a TOC would refuse someone for not wearing a shirt, despite this not being considered indecent or illegal on the beach just outside the station. They are of course entitled to do this despite it not being specifically illegal to travel on a train while not wearing a shirt.

 

[mmh]

You've actually stumbled across a good example there - it's quite likely a TOC would refuse someone for not wearing a shirt, despite this not being considered indecent or illegal on the beach just outside the station. They are of course entitled to do this despite it not being specifically illegal to travel on a train while not wearing a shirt.

And of course people are sometimes prevented from travelling because of a shirt they are wearing when it's a replica sports shirt!

 

[43066]

I don't think that's quite appropriate. The purpose of trains is to convey people. The government allows companies, by agreement, to operate them. It also provides taxpayers' money to many parts of the industry to enable it to function properly. To simply allow those companies to decline customers the use of this national asset without justification because there is no legislation saying they cannot do so would be plainly absurd and not something I could imagine any court agreeing with.

That’s just the way the law works. It isn’t a question of a court agreeing or disagreeing. There’s simply no legal basis* on which a company can be compelled to take on business it does not wish to.

*Certainly in the absence of any additional requirements specific to TOCs, buried in their franchise agreements, and there isn’t anything like that AFAIK.

 

[ForTheLoveOf]

That’s just the way the law works. It isn’t a question of a court agreeing or disagreeing. There’s simply no legal basis* on which a company can be compelled to take on business it does not wish to.

*In the absence of anything of additional requirements specific to TOCs, buried in their franchise agreements, and there isn’t anything like that AFAIK.

I think the better point here is that whilst the TOCs may well be in breach of their franchise agreements, EMAs or the TSA, that isn't something that is actionable by the passenger. Consistent failure of the DfT to enforce such clauses might be actionable against the DfT though.

 

[Starmill]

I remain convinced that it is not unlawful by itself for any of the companies to refuse someone the sale of a ticket. Despite the practical implications of them attempting to do that, if they succeeded, I can't see how that would be unlawful on its own. Arguments about TOCs being 'special' types of firm make no sense.

All of the other proposed situations where travel might be refused to someone who has upheld their end of the contract and not committed an offence are clearly unlawful. Notwithstanding that even in regular times passengers are sometimes unlawfully prevented from travelling or removed from trains. It's something I've seen a handful of times, and experienced myself.

 

[Enthusiast]

So basically then, if I pitch up at the station and am refused travel without justification there would be nothing I could do? I think not. London Underground Ltd is no different to a National Rail TOC. They have been told definitively that they cannot impose an "essential journey" condition on their passengers (as have the London bus operators).

However, we will never get a definitive answer to this because it would take a refusal to travel decision to be made by a TOC and for the matter to be challenged. Despite them seemingly having the right to deny travel for no reason at all and some of them being more than eager to restrict travel, none has done so. I can only wonder why.