Transcription

• Speaker #0

  Today in the Indicator HR and Employment Law podcast we're discussing the Employment Appeal Tribunal judgment in the case of Truman and SPL Powerlines UK Limited and others in which the Employment Appeal Tribunal considered whether a rail worker who failed a drug test due to taking medically prescribed cannabis had suffered disability discrimination. In this case, T was diagnosed with an incurable genetic condition which causes chronic pain, especially in the joints. To help manage his symptoms, T was prescribed medical cannabis in 2022. That same year, following a successful career in the rail industry, T applied for a job vacancy with SPL. This job application was for a safety-critical role in the rail industry and, due to policy requirements imposed by Network Rail, SPL required T to pass a drug and alcohol test. The test itself was carried out by a medical testing company. Although Network Rail's policy for the drugs and alcohol test provides that a fail should be recorded as a pass if the medical review officer is satisfied that there was a legitimate medical need for the quantity of the substance found, the medical testing company failed T after detecting cannabis in his sample. Consequently, T did not get the job and was banned by Network Rail from working in rail industry safety-critical work for five years. A review and an attempt to appeal were each unsuccessful. Thereafter, T brought various disability discrimination claims against SPL, Network Rail and the medical testing company. T's claims were all dismissed by the Employment Tribunal. Determining cross-appeals by all three parties, the Employment Appeal Tribunal held that Network Rail was for the relevant purposes a qualifications body, and that Network Rail had applied a competence standard to T when it refused to provide him with a Sentinel card, which was a prerequisite for the role with SPL, because he had failed the drugs and alcohol test. Despite the fact it had outsourced the performance of the drugs and alcohol test to the medical testing company, Network Rail remained responsible for the testing outcome and its resulting five-year ban on T after he failed it. The medical testing company had no liability for any contravention by Network Rail. Rather, as a qualification body, Network Rail had a duty to make reasonable adjustments when assessing whether the relevant competence standard had been met. In this regard, the Tribunal had erred in its handling of T's reasonable adjustments claim against Network Rail. If the Network Rail policy in relation to the drugs and alcohol test had been correctly applied, T's fail should have been recorded as a pass. The Tribunal had not adequately considered whether Network Rail's failure to take account of all relevant medical information. In this case the fact he had been prescribed medical cannabis amounted to a PCP in itself, or if this PCP placed T at a substantial disadvantage in comparison to a non-disabled comparator who had tested positive for drugs used for recreational purposes. These issues have been remitted back to the Tribunal. Look out for further episodes in this series to stay up to date on all things HR and employment law related.