‘This claim has been an exceptionally difficult and complex one to decide. Whilst the tribunal has not upheld any of the claimant’s claims, as pleaded, the tribunal believes that the claimant has suffered an injustice. For the reasons which are set out below, the tribunal has concluded that the claimant should be able to work in a safety critical role in the rail maintenance industry, just as [a] person taking opiate based medication would be allowed to do, subject to a risk assessment and monitoring...The tribunal members hope that this decision will help persuade those involved to re-visit that decision and allow the claimant to continue in his chosen career.’
‘Some prescribed medicinal cannabis treatments may also contain THC. Only medicinal cannabis products licensed or approved for off-licence use by the UK Medicines and Healthcare products Regulatory Authority (MHRA) can be in the legal possession of the patient they were prescribed to. Possession of cannabis prescribed for someone else is illegal and will be treated in the same way as possession of recreational forms of cannabis. Some medicinal cannabis treatments may have undesirable side effects or may be detectable in drug screening tests, as is the case with other medicines. Existing policies and procedures can be applied just as they would be in the case of other medicines that are also drugs of abuse, for example opiates… …Employers and their occupational health (OH) providers should be aware that licensed medicinal cannabis may increasingly be prescribed in the future, albeit to a small number of patients with significantly disabling conditions. Normal drug and alcohol policies and procedures will be sufficient and can be applied in the usual way.’ … Rail employees considering using CBD oil or other unlicensed preparations should discuss this with their doctor in the first instance. If you work in a safety critical role you have additional responsibilities for the safety of others and must consider this if you decide to use a CBD oil food supplement as even trace amounts of THC may impair your performance and may be detectable in drugs tests. … RSSB and OHSAG have reviewed the use of CBD oil and agree that employees must consider the risks and benefits of this like they do for other food supplements. Essentially, the responsibility to remain free from impairment lies with the individual employee.’
‘D4.4 Many medicines that can impair performance in the initial stages may be well tolerated after a period of time and dose adjustment. Also it should be noted that medicines might alleviate or overcome some of the effects of illness that would otherwise cause impairment at work, for example pain or mood disturbance. … …D.6.4 However many medicines are known to produce unwanted effects in certain circumstances but not in every case. It would not be reasonable to simply prohibit their use and it may amount to disability discrimination to do so. Therefore some form of individual assessment is required in these cases.’
‘A person who requests or seeks employment with Network Rail or a contractor’
‘5.1.3 Candidates who hold Sentinel cards and/or will be working in safety-critical or key safety posts shall be tested for drugs and alcohol before they are permitted to undertake such work.’
‘9.4.4 If the laboratory analysis reveals the presence of a drug consistent with declared and acceptable medication, this shall be reported as a ‘negative’ and recorded as a ‘pass’ result, providing the MRO is satisfied that there is a legitimate medical need for the quantity of substance used, or that such a need is likely to have existed at the time of the declared use. … 9.5 Positive drug screen result 9.5.1. All positive laboratory analysis shall be reviewed by a MRO for confirmation of the ‘positive’ result. 9.5.2 Where the MRO requires further information to determine a pass or fail result, they shall interview the donor and seek further medical information from a third party. 9.5.3. A drug screen result shall be treated as ‘positive’ and recorded as a ‘fail’ result where: a. the laboratory analysis reveals the presence of a drug above accepted cut-off levels and the MRO is satisfied that the findings are not justified by a legitimate medical need;…’
‘There is no evidence before the tribunal to confirm what further information, if any, Dr Theron and Dr Wilson Jones had before them, when they recorded a ‘fail’
‘In my judgment PPP is not an authority or body within the meaning of section 12 of the Act of 1976. I consider that the section has to be read as a whole and not construed piecemeal. The kind of bodies referred to are those similar to authorities which are empowered to grant qualifications or recognition for the purpose of practising a profession, calling, trade or activity…Thus I consider that section 12 of the Act of 1976, referring to an authority or body which confers recognition or approval, refers to a body which has the power or authority to confer on a person a professional qualification or other approval needed to enable him to practise a profession, exercise a calling or take part in some other activity. It does not refer to a body which is not authorised to or empowered to confer such qualification or permission but which stipulates that for the purpose of its commercial agreements a particular qualification is required.’
‘81. Firstly, “relevant qualification” is broadly defined and is concerned not with the intention of the qualifications body but with the effect of the qualification; whether, as a matter of fact, it is needed for, or facilitates engagement in, a particular trade or profession. Thus, a national referee certificate granted by the British Judo Association was a relevant qualification as it facilitated engagement as a judo coach, regardless of the fact that the Association did not grant the certification to that end: British Judo Association v. Petty[1981] ICR 660 . Similarly, the award of a franchise for the provision of legal services could amount to a relevant qualification as it facilitated engagement – made it “easier or less difficult” – in the applicant’s profession as a solicitor: Patterson v. Legal Services Commission[2004] ICR 312 … 82. Whilst the definition is expressed in broad terms, it remains directed to the grant of the qualification, not a requirement for that qualification by another body for the purpose of access to particular engagements under its own commercial arrangements…[Tattari] per Beldam LJ…’
‘…As made clear in Carter v Ahsan[2008] ICR 82 , para 18, however, those who offer employment on the basis of a relevant qualification stand to be considered as “the public”: the key point is that the body granting the qualification is not simply applying a standard for its own purposes but is signifying that the individual meets a particular standard in circumstances where others will rely on that authorisation such that it will provide or facilitate access to a particular profession.’
‘…the EPML amounts to an authorisation and a vouching to the public that the person in question is qualified and has a particular status within the Church of England which can be relied upon and which was arrived at by the application of particular criteria: Watt v. Ahsan at para 18… As Judge Eady QC pointed out at para 108 of the Employment Appeal Tribunal judgment, the Bishop on behalf of the Church of England was not simply applying a standard for his and its own purposes. Granting an EPML signifies to the NHS trust in this case and through the trust to the public that the individual meets a particular standard and has an appropriate status… In granting an EPML a bishop is vouching that a priest has the requisite status within the Church of England for the purpose of the outward facing role which the employment in question entails.’
‘135…At step two, the pre-sponsorship check stage, checks are made as to whether or not the claimant has specific competences, as result of completing the necessary health and safety training; has passed a medical; and has passed D&A screening. In the Tribunal’s judgment, all are part of an assessment of overall competence to work in a safety critical role. The tribunal concludes that the D&A screening is, like the checking of the specific training competences and the medical, directed to the question as to whether or not the claimant has the necessary physical/mental competence to work in this safety critical industry. 136. By virtue ofsection 53(7) of the Equality Act 2010 therefore, the claimant’s claim could only proceed as an indirect discrimination claim. The [Tribunal] disagrees with Ms Chan’s argument that section 53(7) is subject to the relevant respondent complying with the duty to make reasonable adjustments. Section 53(7) makes no such proviso. Unfortunately for the claimant, the claim has not been pleaded in the alternative as a s.19 claim.’
‘It is well established that the duty to make reasonable adjustments arises where a PCP puts a disabled person at a substantial disadvantage compared with people who are not disabled. The purpose of the comparison exercise with people who are not disabled is to test whether the PCP has the effect of producing the relevant disadvantage as between those who are and those who are not disabled, and whether what causes the disadvantage is the PCP. That is not a causation question as the employment tribunal appears to suggest at para [200] (repeatedly emphasising the words ‘because of her disability’). For this reason also, there is no requirement to identify a comparator or comparator group whose circumstances are the same or nearly the same as the disabled person’s circumstances…The fact that both groups are treated equally and that both may suffer a disadvantage in consequence does not eliminate the claim. Both groups might be disadvantaged but the PCP may bite harder on the disabled or a group of disabled people than it does on those without disability. Whether there is a substantial disadvantage as a result of the application of a PCP in a particular case is a question of fact assessed on an objective basis and measured by comparison with what the position would be if the disabled person in question did not have a disability.’
‘19. The effect of s.111(7) is to circumscribe the reach of s.111. Unless the relationship between A and B is such that A, the person giving the instruction or causing or inducing the breach, can commit discrimination under the EqA in relation to B - for example, A is the employer of B and so potentially liable to B under s.39 EqA - the section is not triggered. …41…Not only must A instruct, cause or induce B to discriminate against C, the third party; the relationship between A and B must entail that A is in a position to discriminate against B under the Act. 42. According to the Explanatory Notes to s.111(7), which are a legitimate aid to interpretation, ‘the section only applies where the person giving the instruction is in a relationship with the recipient of the instruction in which discrimination, harassment or victimisation is prohibited’
‘This section makes it unlawful for a person to instruct, cause or induce someone to discriminate against, harass or victimise another person, or attempt to do so’
‘[Network Rail] chooses, for understandable reasons, to have other organisations carry out the D&A test. But it is [Network Rail] which ultimately is responsible for the refusal to issue a card and to impose a ban, due to the application of its policies. If that is because of a discriminatory decision by the medical provider, [Network Rail] is, in the tribunal’s judgment, still responsible. If that were not the case, the claimant would be left without a remedy; since only if [Network Rail] is liable, can [Express Medicals] be liable. [Express Medicals] cannot be liable on its own.’