Jack Truman v SPL Powerlines UK Limited & Ors

A qualifications body applies a competence standard when it requires a candidate to achieve the stated standard, even if it wrongly administers the process for determining whether the candidate has achieved it. A policy allowing a drug-test result to be adjusted for legitimate prescribed medication forms part of that process; it does not qualify the competence standard itself.

For the reasonable-adjustments duty, the comparator must be appropriate to the pleaded PCP. A non-disabled person who has passed a test is not an apt comparator for a PCP concerning an appeal from a failed test. However, where relevant medical information is not considered, a tribunal must give adequate reasons for finding no comparative substantial disadvantage and must address whether the PCP may bite harder on a disabled candidate.

Section 111(7) of the Equality Act 2010 requires a relationship in which the alleged instigator could commit a basic contravention against the person induced. Theoretical capacity to help that person discriminate against others is insufficient.

The claimant, who had haemochromatosis and used prescribed medical cannabis for chronic pain, accepted a conditional offer for a safety-critical rail role with Powerlines. Express Medicals recorded a failed drug and alcohol test and uploaded it to Network Rail’s Sentinel system. The result prevented issue of a Sentinel card and triggered a five-year ban from safety-critical rail work.

The Employment Tribunal held that the applicable policy should have produced a pass, but dismissed the disability-discrimination claims. It found Network Rail to be a qualifications body, treated the drug-testing requirement as a competence standard, found no substantial disadvantage for the pleaded reasonable-adjustments PCPs, and concluded conditionally that Express Medicals could be liable under section 111.

The claimant appealed. Network Rail cross-appealed on qualifications-body status and perversity. Express Medicals cross-appealed on the statutory condition in section 111(7).

1. Appeal allowed in part. The claimant’s appeal succeeded only against Network Rail on the reasonable-adjustments issue. Issues 24 and 25 were remitted, with Issues 23, 26 and 27 to be reconsidered if required. The appeals concerning Powerlines and the competence standard were dismissed. Network Rail’s cross-appeals were dismissed. Express Medicals’ cross-appeal was allowed.

2. Network Rail was a qualifications body under sections 53 and 54 of the Equality Act 2010. A Sentinel card was not merely a physical access card. It evidenced and gave practical effect to Network Rail’s grant of entitlement to work in a safety-critical rail occupation. In granting it to a worker employed or to be employed by another, Network Rail vouched to the public, through the employer, that the individual met the relevant competence standard.

3. The relevant competence standard was achievement of a pass in the drug and alcohol test. The provisions allowing a failed result to be converted to a pass where there was legitimate medical need were part of the assessment process and associated adjustments. Their incorrect application did not mean that Network Rail had failed to apply the competence standard for section 53(7). Potential remedies lay instead in reasonable-adjustments or indirect-discrimination claims.

4. The tribunal did not err in rejecting the reasonable-adjustments claim against Powerlines. The pleaded PCP concerned its refusal to initiate or support an appeal. A comparator who had passed the test had no occasion to appeal, and the pleaded disadvantage did not result from that PCP.

5. As against Network Rail, a non-disabled worker who tested positive was an available comparator. However, the tribunal’s brief reasoning did not explain why failure to consider relevant medical information placed the claimant at no greater disadvantage, or address whether that PCP bit harder on a candidate using cannabis for a medical need. Its findings as to whether the pleaded PCPs had been applied were also unclear. Remittal was therefore required.

6. Section 111(7) required a relationship in which Express Medicals was in a position to commit a basic contravention against Network Rail. Its ability to help Network Rail discriminate against tested workers did not satisfy that condition. Section 111(6) did not cure the defect. Express Medicals consequently had no derivative liability for any contravention by Network Rail.

• Employment Appeal Tribunal: Allowed the claimant’s appeal only on the reasonable-adjustments issue against Network Rail and remitted the relevant issues. Dismissed the claimant’s remaining appeals and Network Rail’s cross-appeals. Allowed Express Medicals’ cross-appeal.
• Employment Tribunal, Sheffield: On 25 June 2024, dismissed the claimant’s disability-discrimination claims.