When dealing with safety-critical roles, employers may, and in some cases are required to, carry out mandatory drug testing. However, a positive test result will not automatically justify exclusion from employment or disciplinary action. Ensuring fair and non-discriminatory application of a drug testing policy and proper consideration of the results is essential. This was evidenced in the case of Truman v SPL Powerlines UK Ltd and others.
Background
The claimant had a successful career in the rail industry until July 2022 when he failed a drug and alcohol test. He had applied for a role with SPL Powerlines UK Ltd ("SPL") that required him to pass a drug and alcohol test in accordance with a policy imposed by Network Rail. Under this policy, a result initially recorded as a "fail" could be treated as a "pass" if the Medical Review Officer was satisfied there was a legitimate need for the quantity of the drug found in the sample taken. The test was carried out by a third party, Express Medicals. In this case, the claimant had alerted SPL to his use of medicinal cannabis in advance of the testing being done.
Express Medicals reported the outcome of the test as a fail. There was no appeal available to the claimant. The consequences of this for the claimant were not only that SPL withdrew their job offer, but Network Rail removed his Sentinel and banned him from working in the rail industry in safety-critical roles for five years. A Sentinel is provided under a mandatory scheme controlled by Network Rail and confirms competence and fitness to work on or near the national rail infrastructure. Until this time, the claimant had continuously held a Sentinel since 2009, when he was 18 years old.
Tribunal judgment
The claimant brought disability discrimination claims against SPL, Network Rail and Express Medicals. Although the tribunal found that, if the policy had been correctly applied, the result should have been recorded as a "pass", all of the claims failed on various grounds.
The opening paragraph of the judgment confirmed that while the tribunal had not upheld any of the claims, it believed that the claimant had suffered an injustice. It described the case as "exceptionally difficult and complex" to decide and concluded that the claimant should be able to work in a safety-critical role in the rail maintenance industry. Despite dismissing the claims, it hoped those involved would revisit their decision and allow the claimant to continue in his chosen career.
EAT judgment
A number of appeals and cross-appeals were made to the Employment Appeal Tribunal ("EAT"), most of which failed. However, the EAT did uphold the claimant's appeal in relation to his reasonable adjustments claim against Network Rail. It held that the tribunal had failed to adequately consider whether the Provision, Criterion or Practice ("PCP") of failing to take account of relevant medical information had actually been applied by Network Rail. It also found that the tribunal had not properly assessed whether the PCP placed the claimant at a substantial disadvantage in comparison to a non-disabled person who had tested positive for drugs. This issue was remitted to the tribunal for reconsideration.
An appeal by Express Medicals regarding its potential liability for inducing discrimination was also successful. The EAT also agreed with the tribunal that, had the policy been applied correctly, the claimant's result should have been recorded as a pass.
What can employers learn from this?
The central issue in this case is proper application of a drug testing policy where a worker has disclosed the lawful use of prescribed medical cannabis. As the use of prescribed medical cannabis is likely to increase, employers may see a corresponding rise in positive drug tests. Employers should therefore:
- revisit policies to ensure they distinguish between unlawful drug use and disability-related treatment;
- consider the inclusion of exemptions for medically prescribed drugs and how and when they might be applied;
- ensure the policy provides for flexibility to consider disability issues and reasonable adjustments where prescribed medication results in a failed test;
- seek medical advice on how a failed test impacts fitness for work, the extent of impairment and workplace risk;
- offer an appeal process;
- carefully document decisions and the reasons for them.
This case is a reminder that, even in safety-critical roles, there cannot be a zero-tolerance approach where prescribed medication is involved. Employers must analyse the particular circumstances of the disabled employee or applicant, assess any risks and reasonable adjustments that might be made and apply their policies in a non-discriminatory manner.
