A recent Employment Appeal Tribunal (EAT) case has partially upheld a job applicant’s appeal against the rejection of his claim that the employer and its agents failed to make reasonable adjustments to accommodate him.

Mr Truman (T) suffered from an incurable condition that caused chronic pain and was prescribed medicinal cannabis to help manage his symptoms. In 2022, he was offered a role with SPL Powerlines in a safety-critical position and was required to undergo drug and alcohol testing (carried out by a third party) in accordance with the requirements of Network Rail Infrastructure Ltd. All such roles are subject to mandatory testing, following which workers are issued with a Sentinel Card confirming their competence to work. T had previously held a Sentinel Card since 2009.

Network Rail’s policy stated that where drugs or alcohol were detected at unacceptable levels, the individual would fail the test. However, the policy also provided that where there was a medical explanation, the result should be recorded as a pass if the Medical Review Officer (MRO) was satisfied with the explanation, supporting evidence, and the quantity of the substance detected.

T declared his medication on the pre-employment medical questionnaire and again to the nurse administering the test, who was employed by a third-party provider. He was informed that the MRO would request further information if necessary.

T’s urine sample tested positive and, as a result, he failed the test. The MRO’s notes did not refer to T’s declared medication, nor did they request any additional information. Following the failed test, T was issued with a five-year ban on working in safety-critical roles and the job offer was withdrawn. SPL refused to support an appeal against the result.

T brought claims for disability discrimination and failure to make reasonable adjustments against SPL and Network Rail. He also argued that the testing company had “instructed, caused or induced” Network Rail to discriminate against him. His case was that the failure to take account of his prescribed medication and medical history made him less likely to pass the test and therefore placed him at a disadvantage.

The Employment Tribunal dismissed his claims but acknowledged that T had “clearly suffered injustice”. It noted that, had the testing company applied Network Rail’s policy correctly, T would likely have passed the test. T appealed.

The Employment Appeal Tribunal upheld the decision, finding that Network Rail was acting as a qualifications body and that applying a competence standard in a safety-critical role did not amount to disability discrimination under section 53 of the Equality Act 2010. However, the EAT reiterated that qualification bodies remain under a duty to make reasonable adjustments. Although most of T’s claims failed, the issue of reasonable adjustments was remitted to the Tribunal for reconsideration.

This outcome demonstrates that employers must apply their drug and alcohol policies carefully. Where third parties are used to carry out testing, employers may still face liability for the way those processes are administered. Employers should ensure that testing providers are fully familiar with their policies and understand how they should be applied. Where policies contain exceptions relating to the medical use of prescribed drugs, these exceptions should be applied consistently and fairly.

Given the complexities involved, employers should seek professional HR advice. The Quest HR Helpline is available on 01455 852 028 to provide guidance and support to help employers remain compliant and avoid potential legal risks.