Rail worker may have been discriminated against after positive medical cannabis test

At the Employment Tribunal, it was found that a rail worker's dismissal due to the use of medicinal cannabis may have been disability discrimination. 

The employee (AB) had haemochromatosis and used prescribed medicinal cannabis to help reduce chronic pain. He was offered the job with the employer, conditional on passing a drug and alcohol test.

During AB’s test appointment, he advised the nurse that he was prescribed medicinal cannabis and showed her the prescription via his phone. 

Network Rail’s Level 2 policy advised that a positive drug test could still be recorded as a pass if there was a legitimate medical need for the quantity of substance detected. The tribunal found that, if the policy had been properly applied, Truman’s result would have been classified as a pass. Despite this, the company recorded a ‘fail’, even though AB disclosed and provided supporting medical evidence for his use of cannabis. Subsequently, the result was uploaded to Network Rail’s Sentinel system, which is used to authorise rail workers, automatically triggering a five-year ban for Truman to undertake any safety-critical role.

AB made claims of disability discrimination and separately alleged that the test provider had “instructed, caused or induced” his employer to discriminate against him.

A manager at the medical company stated, “although the prescription is supplied following medical advice from your specialist, use of any substance containing THC is not permitted within the Network Rail industry on the grounds of safety, even if prescribed. Therefore, the result and thus the outcome remains the same.”

At the original tribunal hearing, AB's claims were dismissed, though it was found that he had “suffered an injustice” and that the policy should have allowed him to pass the test.

When the outcome was appealed, flaws were found in the reasoning of the tribunal, such as regarding whether AB was placed at a substantial disadvantage, whereby the EAT sent back aspects of the case for further consideration. The EAT determined that the tribunal had not properly considered whether the company applied the provision, criterion or practice (PCP), including ignoring important medical evidence during the drug test assessment.

In addition to this, the EAT also found the tribunal had not accurately analysed whether AB was put in a position of substantial disadvantage in comparison to non-disabled workers, when testing positive during the drug test. It was stated that “the tribunal was wrong to take as a comparator a non-disabled person who tested positive for drugs,” “The correct comparator was a non-disabled person who took the test and passed.” 

The judge found that the company was accountable for the refusal to issue AB a Sentinel card and the imposition of the work ban, even considering that the test was carried out by an independent company.

A Network Rail spokesperson said: “As a safety-critical organisation, Network Rail’s drugs and alcohol policy remains a vital role in protecting the safety of passengers, staff and the public. While aspects of the case remain subject to further tribunal considerations, no final determination has been made, and it would be inappropriate to comment further.” 

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