Drug and alcohol testing: reasonable adjustments and prescribed medical cannabis

Facts

Mr Truman suffered from genetic haemochromatosis, an incurable condition that causes chronic pain. He was prescribed medical cannabis to help alleviate his symptoms. In June 2022, he was offered a job with SPL Powerlines UK Ltd (Powerlines). Although the job was primarily office based, it was considered a safety critical role. The offer was therefore conditional on Mr Truman passing a drug and alcohol test administered by Express Medicals Ltd (Express) in accordance with a policy imposed by Network Rail Infrastructure Ltd (Network Rail).

All safety critical roles in the rail industry are subject to a mandatory scheme controlled by Network Rail, under which individuals who pass a drug and alcohol screening process are issued with a Sentinel card that confirms their basic competence and fitness to work in such roles. Until the events in this case, Mr Truman had held a Sentinel card continuously since 2009.

Network Rail's policy provided that where an individual's sample indicated the presence of drugs in their system above accepted levels, that would constitute a "fail". However, it also provided that the result should be recorded as a "pass" if the Medical Review Officer (MRO) was satisfied that there was a legitimate medical need for the quantity of the substance found.

Mr Truman declared his use of prescribed medical cannabis both on a pre-employment medical questionnaire and to the Express nurse who administered his test. He also showed the nurse a copy of the prescription on his phone. He was told that the MRO would request further information if necessary.

Mr Truman's urine sample tested positive for cannabis metabolites and he was recorded as having failed the test. The MRO's notes did not refer to Mr Truman's declared medication and they did not request any further information. When Express uploaded the "fail" result to Network Rail's Sentinel system, Mr Truman received a five year ban on working in safety critical roles in the rail industry. Powerlines withdrew Mr Truman's job offer, and refused to support him in an appeal against the test result.

Mr Truman brought claims for discrimination arising from disability and failure to make reasonable adjustments against both Powerlines and Network Rail, and a claim that Express had instructed, caused, or induced Network Rail to discriminate against him. An employment tribunal dismissed all of his claims, but commented that Mr Truman had clearly "suffered an injustice", noting that if Express had applied Network Rail's policy correctly, Mr Truman's result should have been recorded as a "pass". Mr Truman appealed against the dismissal of his discrimination arising from disability claim against Network Rail, and his reasonable adjustments claims against both Network Rail and Powerlines. Express cross-appealed on a particular aspect of the tribunal's reasoning on the instructing, causing or inducing claim.

EAT decision

The EAT upheld the tribunal's decision that in requiring individuals in safety critical roles to pass a drug and alcohol test in order to be issued with a Sentinel card, Network Rail was a "qualifications body" applying a "competence standard" under section 53 of the Equality Act 2010 (the EqA). This section provides that the application of a competence standard will not amount to disability discrimination, so Mr Truman's claim for discrimination arising from disability could not succeed.

Qualifications bodies are, however, subject to an express duty to make reasonable adjustments. The EAT considered that the tribunal's decision in relation to the reasonable adjustments claim against Network Rail was not sufficiently reasoned.

Case law confirms that in a reasonable adjustments claim, the fact that a non-disabled person might also suffer a disadvantage as a result of the application of the PCP did not mean that the duty to make reasonable adjustments did not arise, as the PCP might "bite harder" on the disabled person.

Mr Truman alleged that Network Rail had applied PCPs of issuing or refusing Sentinel cards, and issuing bans, without taking into account all relevant medical information. He claimed this put him at the substantial disadvantage that he was less likely than a non-disabled comparator to pass the test because material information was not passed on. The EAT held that the appropriate comparator for these purposes was a non-disabled worker who also tested positive for cannabis. It was arguable that failure to take account of all relevant medical information would bite harder on a disabled candidate with a medical need for cannabis than on a recreational user. The reasonable adjustments claim against Network Rail was therefore remitted to the tribunal for reconsideration.

However, the EAT upheld the tribunal's rejection of Mr Truman's reasonable adjustments claim against Powerlines. The relevant PCP was Powerlines' refusal to support appeals against drug and alcohol test failures by prospective employees. The EAT held that the way the substantial disadvantage was pleaded meant that it could not actually result from the PCP, so the tribunal could not have come to any other conclusion on this issue.

The EAT also held that the claim that Express had instructed, caused or induced Network Rail to discriminate against Mr Truman under section 111 of the EqA could not succeed.

What does this mean for employers?

Although the job applicant's claims against the prospective employer were unsuccessful on the facts, this case highlights that employers must ensure that policies on drugs and alcohol are applied with care. If an employer outsources the conduct of any testing to a third party provider, the employer will remain responsible for the outcome, and should ensure that the provider properly understands its policy. Where a policy provides a possible exception for prescribed medication, this should be applied consistently. Reasonable adjustments to testing for disabled applicants should also be considered where appropriate.

Case: Truman v (1) SPL Powerlines UK Ltd (2) Network Rail Infrastructure Ltd (3) Express Medicals Ltd