The claimant applied for a safety-critical job in the rail industry. He needed a Sentinel card from Network Rail for this, which required a drug and alcohol test. He was taking medical cannabis for an incurable medical condition. The company which tested him uploaded a ‘fail’ to the Network Rail website, but the employment tribunal said that under Network Rail’s Policy on medications, this should have been changed to a ‘pass’. The EAT held that Network Rail (as a ‘qualifications body’) might potentially be liable for failure to make reasonable adjustments, but the testing company was not liable under s.111(2) EqA for ‘causing’ any discrimination by Network Rail.
[2026] EAT 54, Employment Appeal Tribunal. Full decision: bailii.org/uk/cases/UKEAT/2026/54.html. (Employment tribunal decision: pdf on 42br.com.)
Facts
The claimant had an incurable condition whose primary symptom was chronic pain. He was prescribed medical cannabis for this.
Following a successful career in the rail industry, he applied to Powerlines for a job with a safety-critical role in that industry. This required him to pass a drug and alcohol (D&A) test in accordance with a policy imposed by Network Rail (its Sentinel system). Para 9.4.4 of one of the Network Rail policies provided for a ‘fail’ of the test to be recorded as a ‘pass’ if the presence of a drug was ‘consistent with declared and acceptable medication’ and the Medical Review Officer was ‘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’.
The D&A test was carried out by Express Medicals. The claimant told the nurse there that he used medical cannabis, and showed her the prescriptions on his phone. She told him that the Medical Review Officer would contact him if further information was needed. Express Medicals uploaded a ‘fail’ result to Network Rail’s Sentinel system, without any prior discussion with the claimant. In consequence, he did not get the job. Also his Sentinel card was withdrawn (this card provides confirmation of basic competence and medical fitness to work on or near national rail infrastructure). Network Rail banned him from working in rail industry safety-critical work for five years. A review and an attempt to appeal were each unsuccessful.
The employment tribunal (ET) found that if Network Rail’s policy in 9.4.4 had been correctly applied, the claimant should have passed the D&A test. The ET also accepted unchallenged expert evidence that the claimant ‘…could have worked safely in the role, with appropriate safeguards in place…’.
ET decision
The employment tribunal (ET) rejected all the claimant’s disability discrimination claims against Powerlines, Network Rail, and Express Medical, saying:
- In his claims against Powerlines: as regards reasonable adjustments, the claimant had claimed the wrong PCP (provision criterion or practice) and was not put at a disadvantage by the PCP he claimed; and as regards s.15 EqA (discrimination arising from disability), Powerlines was justified in withdrawing the job offer because he failed the D&A test.
- Network Rail fell within EqA s.53 as a ‘qualifications body’, but his s.15 claim against Network Rail was excluded by s.53(7) because his complaint was against the application of a competence standard. The ET also rejected his reasonable adjustments claim against Network Rail, for the same reason as that against Powerlines.
- As to his claims against Express Medicals, the ET stated that, had it upheld any of the claims against Network Rail, it would in principle have concluded that Express Medicals was in breach of s.111(2) EqA by causing Network Rail to contravene the EqA, ‘…particularly in relation to any breaches which resulted from (and therefore were caused by) [Express Medicals’] unjustified and potentially discriminatory decision to fail the claimant on the D&A test in the circumstances of this case.’
EAT decision
Summary of EAT decision
In brief, the result of the EAT decision was:
- An ET will need to reconsider the reasonable adjustments claim against Network Rail (unless the parties settle), and may or may not find Network Rail liable for this.
- Even if Network Rail is liable, Express Medicals is not liable under s.111 EqA for ‘causing’ a failure by Network Rail to make reasonable adjustments, because the condition in s.111(7) was not met.
- Powerlines, the potential employer, was not liable for disability discrimination – though the ET implied it might have decided differently if a different PCP had been claimed.
In more detail:
Network Rail was a qualifications body
The EAT upheld the ET decision that Network Rail was a qualifications body as defined in s.54 EqA (§§65-82). Network Rail could therefore be liable for discrimination under s.53 EqA: see Professional exam bodies.
S.54 EqA defines a qualifications body as an authority or body which can confer a relevant qualification. Under s.54(3), a relevant qualification includes an ‘authorisation, qualification, … approval or certification which is needed for, or facilitates engagement in, a particular trade or profession’.
In the appeal to the EAT, one of Network’s Rail’s arguments was that carrying out a safety-critical role in this sector of the rail industry was not a ‘trade or profession’. However, s.212 EqA defines ‘profession’ as including a vocation or occupation. The EAT said that Network RaiI’s argument ‘sought unduly to confine the range of professions, vocations, trades or occupations to those which can be described in a long-established and/or simple formulation, eg, “solicitor” or “plumber” ‘. That was contrary to the broad statutory language, and to the sheer range of different forms of employment (and of their descriptions) in the modern world, said the EAT. The claimant had applied to Powerlines for a job as a POS/AP Lift Planner, which was a safety-critical role in the rail maintenance sector. Whatever its precise description, this was at the very least a trade or occupation.
The EAT also rejected an argument by Network Rail, based on previous case law, that the grant of the Sentinel card was not ‘outward facing’ or otherwise ‘vouching’ to the public for the claimant’s competence for the job. The EAT said that the critical distinction was between assessments and decisions made (i) for the benefit of the decision-maker alone (such as a health insurer refusing to enter a doctor on its list of approved consultants, held not to be a qualifications body in a case called Tattari) and (ii) for the benefit of the public, either directly or via third parties. Any person employed in a safety-critical role in the rail maintenance sector had an ‘outward facing’ role to the public. In granting a Sentinel card to an actual or prospective employee of a third party employer in the sector, Network Rail was not (at least, primarily) acting for its own benefit. Rather, it was vouching to the public – via the actual/prospective employer – that the person in question met the relevant standard of competence and/or had an appropriate status.
[See further Professional exam bodies>What is a ‘qualifications body’?]
… but Network Rail was applying a competence standard, so not liable under s.15 EqA
S.53(7) EqA says that the application by a qualifications body of a competence standard to a disabled person is not disability discrimination unless it is discrimination by virtue of s.19 EqA, ie indirect discrimination. The ET commented: ‘Unfortunately for the claimant, the claim has not been pleaded in the alternative as a s.19 claim.’
The EAT upheld the ET decision that in the present case s.53(7) excluded a claim against Network Rail under s.15 EqA (§§83-95).
The ET had decided that the D&A screening was, like the checking of specific training competences and the medical, directed to the question of whether or not the claimant had the necessary physical/mental competence to work in this safety-critical industry. By virtue of s.53(7) therefore, the claimant’s claim could only proceed as an indirect discrimination claim.
In the appeal to the EAT, the claimant argued that the ET had misidentified Network Rail’s ‘competence standard’. He contended that the relevant part of the competence standard should have been identified as ‘the requirement to pass the D&A test only after its written policy on adjusting results for legitimate drug-based medications had been followed’. The ET found that the claimant was wrongly given a fail, so (according to the claimant’s argument) Network Rail had not applied its competence standard.
The claimant did not argue that Network Rail had to have made any required reasonable adjustments for it to rely on s.53(7). The claimant acknowledged the distinction generally drawn between (i) a competence standard itself, which can only be challenged by way of indirect discrimination, and (ii) the process by which attainment of the standard is determined, which can be subject to reasonable adjustments (Professional exam bodies>Reasonable adjustments: process for assessing competence standards).
Rather, the claimant argued to the EAT that Network Rail’s para 9.4.4 policy on medications was part of the competence standard, so Network Rail had not applied its own competence standard, and so could not rely on s.53(7). The EAT rejected the claimant’s argument, saying that it confused the identification of the competence standard with the process by which attainment of the standard was determined and associated adjustments:
- The EAT said: ‘In this case, the relevant competence standard applied by Network Rail was the achievement of a pass in the D&A test. By contrast, its policy provisions [para 9.4.4], which allowed for a ‘fail’ to be converted into a ‘pass’ in the specified circumstances, were part of the process by which achievement of that competence standard was to be determined.’
- The EAT gave an example of a qualifications body which requires the passing of a written examination. Say it has a policy that visually impaired candidates should be provided with a large print paper, but it fails to provide this to a relevant candidate. The EAT said that the competence standard applied by the qualifications body in this example is the passing of the exam; and to that extent the body could rely on s.53(7). The competence standard could not be defined as ‘passing the examination in circumstances where the policy for the supply of large print paper had been carried out’. There was no basis to incorporate the process into the identification of the competence standard. The focus for potential remedies for failure to provide the large print paper included failure to make reasonable adjustments, and/or indirect discrimination (s.19), but not s.15.
- Similarly in this case, Network Rail’s para 9.4.4 policy in respect of medications was an adjustment in order to facilitate the ability of those with the relevant disability to demonstrate that they met the competence standard of passing the D&A test. Again, potential remedies would include claims of failure to make reasonable adjustments and/or indirect discrimination.
The EAT similarly rejected an argument by the claimant that the competence being assessed was the medical competence to work unimpaired by drugs or alcohol (including the para 9.4.4 policy on medications). The claimant distinguished this from the method for assessing whether that competence had been achieved. The EAT said: ‘Although [the argument’s] form seeks to distinguish between the test and the process, its substance depends on their conflation.’
[For my comments on this, see below Comment: Was policy on medications part of the competence standard? See also generally my page Competence standards, which includes Competence standards>Technical note: Truman case on drug test.]
Reasonable adjustments and ‘substantial disadvantage’
The EAT’s discussion here was limited by the provisions, criteria and practices (PCPs) which were included in the claim to the ET, and by the agreed list of issues. For example, the ET thought that the claimant should have claimed the requirement to pass the D&A test as a PCP: §49 of EAT decision.
Even so, the EAT allowed the claimant’s appeal in respect of his reasonable adjustments claim against Network Rail. The EAT said it was unclear how the ET decided that the claimant was not put at a substantial disadvantage as being less likely to pass the D&A test because medical information was not passed on. An ETl should reconsider this (issue 25 in the Agreed list of issues, at the end of the EAT judgment).
An ET should also clarify whether any of the alleged PCPs (set out in issue 24) were applied by Network Rail. These PCPs related broadly to not taking all medical information into account, not conducting reviews, and not allowing appeals in relation to prospective staff. If Network Rail did apply PCPs putting the claimant at a disadvantage in relation to his disability, the ET would need to consider Network Rail’s actual or constructive knowledge (issue 23), and whether there were reasonable adjustments it should have made (issues 26 and 27).
However, his appeal in respect of his reasonable adjustment claim against Powerlines failed. (§§96-115)
‘Causing’ discrimination
The ET said that had it upheld any of the claims against Network Rail, it would in principle have concluded that Express Medicals was in breach of s.111(2) EqA, by causing Network Rail to contravene the EqA ‘…particularly in relation to any breaches which resulted from (and therefore were caused by) [Express Medicals’] unjustified and potentially discriminatory decision to fail the claimant on the D&A test in the circumstances of this case.’
A precondition of being liable under s.111(2) is that ‘the relationship between A [ie Express Medicals] and B [ie Network Rail] is such that A is in a position to commit a basic contravention of the EqA in relation to B’ (s.111(7), see Instructing or causing discrimination, or helping it>S.111(7): relationship between inducer and inducee). ‘Basic contravention’ includes discrimination by employers, qualification bodies, or service providers etc, but also includes a breach of s.112(1), ie knowingly helping such a person to commit discrimination. The ET held that s.111(7) was satisfied because Express Medicals was theoretically in a position to commit a basic contravention by knowingly helping Network Rail to commit an act of discrimination against those subjected to D&A testing.
The claimant sought to defend the ET’s decision on this. It pointed out to the EAT: ‘In this case, the relationship between Express Medicals and Network Rail included that Express Medicals was an approved tester for Network Rail’s Sentinel card and thereby mandated to operate under its D&A Level 2 policy; and that Network Rail was almost entirely dependent on Express Medicals’ pass/fail results which it uploaded onto the Sentinel system, even though Network Rail had the power to revisit its refusal and ban decisions.’
The EAT held that the condition in s.111(7) was not satisfied (§§116-142), so Express Medicals was not liable under s.111, even if Network Rail had discriminated against the claimant. ‘In relation to B’ in s.111(7) means ‘against B’, said the EAT. So the question was whether the relationship between Express Medicals and Network Rail was such that Express Medicals was in a position to commit a basic contravention against Network Rail.
The potential basic contravention identified by the ET, namely Express Medicals knowingly helping Network Rail to discriminate against those subjected to D&A testing, was not a basic contravention against Network Rail. There was no basis to conclude that the relationship between Express Medicals and Network Rail was such that Express Medicals was in a position to give knowing help to a third party to commit a basic contravention against Network Rail, which was what s.111(7) would require if, as held by the ET, the basic contravention was under s.112(1). Therefore the condition in s.111(7) was not satisfied, and Express Medicals was not liable under s.111.
More broadly, the EAT found it difficult to see how the language of s.111(7) could have any application to s.112(1), because the latter does not depend on there being any form of underlying relationship between A and B. (S.111(7) refers to the ‘relationship’ between A and B being such that there could be a basic contravention.)
[For my comments on this, see below Comment: ‘Causing’ discrimination under s.111. See more generally Instructing or causing discrimination, or helping it>S.111(7): relationship between inducer and inducee.]
Perversity
The EAT also rejected arguments of perversity against aspects of the ET’s decision (§§143-155).
One conclusion of the ET upheld by the EAT (as not being perverse) was that, in respect of the s.15 claim, Network Rail was responsible for the refusal to issue a Sentinel card and for the decision to impose a ban. The ET said that Network Rail chooses, for understandable reasons, to have other organisations carry out the D&A test. But Network Rail was ultimately responsible for the refusal to issue a card and to impose a ban, due to the application of its policies. If that was because of a discriminatory decision by the medical provider, Network Rail was, in the ET’s judgment, still responsible.
My comment
Comment: Was policy on medications part of the competence standard?
The EAT decided (above) that the s.15 claim was blocked by s.53(7), which says that the application by a qualifications body of a competence standard to a disabled person is not disability discrimination except on a claim for indirect discrimination under s.19 EqA. (However, the reasonable adjustments claims could still be brought: below Comment: Why does s.53(7) block s.15 but not reasonable adjustment claim?)
Network Rail did not apply its policy in para 9.4.4, which said that certain people on acceptable medication should pass the D&A test despite being over the drug limit. The EAT held that Network Rail nevertheless applied its competence standard, because para 9.4.4 was not part of this standard. The EAT said para 9.4.4 was an adjustment to the process for assessing the competence standard. It was analogous to a qualifications body setting a written exam and failing to comply with its own policy to provide a large print paper to a visually impaired candidate. Such a body still applied its competence standard, despite failing to adjust the process for assessing the standard.
I find this EAT decision problematic. Broadly speaking, it will be binding on employment tribunals, unless overruled in future or distinguished on the facts. I think it would be difficult to apply except to very similar facts, given how hard it is to understand the reasoning.
The key problem seems to me to be that the EAT did not really define what the competence standard was. The EAT identified it as ‘the achievement of a pass in the D&A test’. But what does that mean? For example, if a ‘pass’ is defined as what Network Rail’s policies say is required to pass, then on the face of it, para 9.4.4 is part of those policies, and so part of the competence standard. If ‘achievement’ of a pass means whatever Network Rail or the testing company decide in a particular case (without applying Network Rail’s policies), that really sounds like no standard at all.
Or the competence standard might be: not having drug or alcohol levels above the specified limits (ignoring para 9.4.4). If so, then surely Network Rail’s para 9.4.4 policy on medications involves a change to the competence standard itself, not an adjustment to the process for assessing it. In the EAT’s example of providing a large print exam paper to those with a visual disability, all examinees are still required to answer the same questions. The large print paper just allows people with a particular disability to access those questions. The para 9.4.4 policy – of passing certain people despite being over the stated drug limits – is more akin to changing or disapplying some of the questions asked in the exam paper. It does not seem to be analogous to para 9.4.4.
Perhaps the EAT saw the competence standard as something else, but it is not clear what. Unless one identifies the competence standard as something consistent with the para 9.4.4 policy on medications (such as ‘medical competence to work unimpaired by drugs or alcohol’ which the claimant also suggested), it seems to me that para 9.4.4 must be part of the competence standard, as the claimant argued. Either way, I’d think the claimant’s argument (that a s.15 claim is possible, as the competence standard was not applied) should succeed.
In the present case, this issue only affected his s.15 claim. The EAT said potential remedies did include claims of failure to make reasonable adjustments, and/or indirect discrimination.
My Competence standards page discusses what is meant by a competence standard.
Comment: Why does s.53(7) block s.15, but not reasonable adjustment claim?
S.53(7) EqA, where it applies, excludes both s.15 claims and claims for reasonable adjustments. Also, although not mentioned by the EAT, EqA Sch 8 para 15(2) says that – as regards a reasonable adjustments claim against a qualifications body – a provision, criterion or practice (PCP) does not include the application of a competence standard.)
The EAT found that the claimant could not claim against Network Rail under s.15 EqA (Professional exam bodies>Discrimination arising from disability (s.15)), but could claim against against Network Rail for failure to make reasonable adjustments (Professional exam bodies>Reasonable adjustments: process for assessing competence standards).
Given that both s.15 and reasonable adjustment claims are blocked by s.53(7) (and Sch 8 para 15(2) can also block reasonable adjustment claims), it may seems strange that the s.15 claims were blocked but the reasonable adjustment claims were not. This is a difficult area but I think it makes some sort of sense, for reasons I set out at Professional exam bodies>Truman case: s.15 held to be excluded by s.53(7).
Comment: ‘Causing’ discrimination under s.111
It was Express Medicals that uploaded the ‘fail’ result to the Network Rail system. The ET found that if Network Rail’s policy had been correctly applied, the claimant should have passed the D&A test.
Nevertheless, the EAT held (‘Causing’ discrimination, above) that even if Network Rail was liable for failing to make reasonable adjustments, Express Medicals was not liable under s.111(2) EqA for ‘causing’ this discrimination by Network Rail, because the condition in s.111(7) was not met. S.111(7) says that s.111(2) etc does not apply unless the relationship between A (Express Medicals) and B (Network Rail) is such that A is in a position to commit a basic contravention in relation to B. (see Instructing or causing discrimination, or helping it>S.111(7): relationship between inducer and inducee). The EAT held that A must be in a position to commit a basic contravention against B. Here there was no relationship such that Express Medicals was in a position to be liable for discriminating against Network Rail. So Express Medicals was not liable under s.111(2).
It perhaps seems odd that Express Medicals could not be liable, given the relationship between Express Medicals and Network Rail described by the claimant. However, the statutory wording is far from clear, and the EAT’s reading of it seems at least plausible. In any event, the EAT decision that the basic contravention under s.111(7) must be against B will be binding on ETs.
The claimant had also argued that Express Medicals acted as an agent of Network Rail within s.109-110 EqA (Who is liable under the Equality Act?>Agents) so as to be liable under s.110. However, this argument was abandoned in the course of the ET hearing (§58 of EAT decision).
Express Medicals might potentially be liable to the claimant under s.111 if it were providing services to Network Rail, as part of providing services to the public. Express Medicals might then meet the condition in s.111(7) by having a relationship of service provider and customer with Network Rail, so that Express Medicals was in a position to discriminate against Network Rail contrary to EqA Part 3. Similarly in Bailey v Stonewall, 2025, Stonewall was potentially liable under s.111 as a body providing services to Garden Court Chambers and others – but Stonewall was held not to have caused etc discrimination.
External links
- Jack Truman v SPL Powerlines UK Ltd, Network Rail Infrastructure Ltd and Express Medicals Ltd [2026] EAT 54 (42br.com), 7 May 2026
- The essential guide to Sentinel cards in the rail industry (cavendishprofessionals.com).
