Pre Sponsorship Query

[Red October]

A company wants to hire someone. They send that person to a NWR pre sponsorship medical, in which they fail. The candidate wants to appeal and has evidence to support such an appeal. However the company claims they are not the sponsor or employer so do nothing. Is this correct of the company?

 

[43066]

A company wants to hire someone. They send that person to a NWR pre sponsorship medical, in which they fail. The candidate wants to appeal and has evidence to support such an appeal. However the company claims they are not the sponsor or employer so do nothing. Is this correct of the company?

If the job was contingent on passing the medical then that seems reasonable. The condition hasn’t been met and there’s no obligation to allow an appeal.

What did the person fail for? If it was drugs or alcohol then they’ll be in for an uphill battle.

 

[Red October]

If the job was contingent on passing the medical then that seems reasonable. The condition hasn’t been met and there’s no obligation to allow an appeal.

What did the person fail for? If it was drugs or alcohol then they’ll be in for an uphill battle.

Prescription medication declared beforehand. So what is is the candidates procedure for appeal? Sentinel require the sponsor to appeal. The medical provider claim the employer is responsible and will hear no appeal. The employer accepts no responsibility since they claim they aren't the sponsor or employer.

Do pre sponsorship candidates have no right to appeal?

 

[43066]

Prescription medication declared beforehand. So what is is the candidates procedure for appeal? Sentinel require the sponsor to appeal. The medical provider claim the employer is responsible and will hear no appeal. The employer accepts no responsibility since they claim they aren't the sponsor or employer.

Do pre sponsorship candidates have no right to appeal?

I assume this an employment agency asking for the medical rather than the employer?

I don’t see that there is any automatic right to appeal. Ultimately as above they’re entitled to make passing the medical a condition of employment as without it you can’t do the job. If you were to appeal you’d presumably need another medical at their expense (which you might fail again) whereas they can just move into someone who has passed.

Perhaps you could offer to self sponsor and go back once you’ve passed?

 

[Red October]

I assume this an employment agency asking for the medical rather than the employer?

I don’t see that there is any automatic right to appeal. Ultimately as above they’re entitled to make passing the medical a condition of employment as without it you can’t do the job. If you were to appeal you’d presumably need another medical at their expense (which you might fail again) whereas they can just move into someone who has passed.

Perhaps you could offer to self sponsor and go back once you’ve passed?

Its a question on behalf of the candidate. A 5 year suspension is in place. It seems to be that the company is using a NWR official pre sponsorship as a method of medical selection, only a Sponsor can book a medical yet no contract of sponsorship apparently exists. The candidate had legitimate right to use medication found in the DnA screening but seemingly can't appeal and have lost their career.

 

[43066]

Its a question on behalf of the candidate. A 5 year suspension is in place. It seems to be that the company is using a NWR official pre sponsorship as a method of medical selection, only a Sponsor can book a medical yet no contract of sponsorship apparently exists. The candidate had legitimate right to use medication found in the DnA screening but seemingly can't appeal and have lost their career.

With all due respect are you sure they’re being completely upfront with you about the failure? A five year suspension sounds more like either they didn’t declare properly or something else was found that shouldn’t have been.

For normal meds they might say have some time away from safety critical work until side effects are known but a five year suspension AFAIK is only for when the policy has been breached.

 

[Red October]

With all due respect are you sure they’re being completely upfront with you about the failure? A five year suspension sounds more like either they didn’t declare properly or something else was found that shouldn’t have been.

For normal meds they might say have some time away from safety critical work until side effects are known but a five year suspension AFAIK is only for when the policy has been breached.

Everything has been verified relating to the medication and its legality. The issue is the medication itself has only been made recently legal and available for public prescription albeit off label use and through private doctors. Though my question was relating to the rights of a candidate to appeal in the pre sponsorship stage there is probably a debate to be had around the use of medical cannabis for rail workers.

Current policy allows for it in safety critical roles just like with opiates, confirmed through a position statement by the RSSB. Even Nwr policy deems a positive result can only be made if there is no medical need for the identified substance.

However criminality was assumed and the identified drug was assumed to be used recreationally hence why the employer dropped the candidate and the medical company won't hear any appeal.

 

[Horizon22]

This sounds like they might need to speak to a lawyer about this because they are saying the grounds for appeal are incorrect and it sounds like a very niche issue.

 

[LCC106]

If it is medicinal cannabis prescribed correctly in hindsight the right thing to do would have been to take a medical report from the GP to the medical in the first place. Whether or not the candidate believes it should have been acceptable due to it being medication is something that we as non healthcare trained individuals couldn’t comment on.

 

[Red October]

If it is medicinal cannabis prescribed correctly in hindsight the right thing to do would have been to take a medical report from the GP to the medical in the first place. Whether or not the candidate believes it should have been acceptable due to it being medication is something that we as non healthcare trained individuals couldn’t comment on.

It was taken but not taken into account as it was claimed there is a NWR blanket ban on such substances though NWR guidance explicitly says no blanket ban can exist as it may amount to discrimination. The main question was around the candidates available options for appealing since they believed it was the responsibility of the company that booked the pre sponsorship medical under their sponsor status, to review and investigate.

From what I've read in the sentinel rules and relating policies is that the candidate must complete a premedical screening, it doesn't specify that you need to pass, only complete then a contract of sponsorship is formed. If this isn't the case there is a grey area for existing and new applicants who if they failed the medical and doa and were innocent or had a medical reason for the failure then there is no way to appeal and you're career is railroaded to an abrupt end.

If the only option is to take it to court then it is what it is. Appreciate the input from everyone though.

 

[LCC106]

Surely the individual would expect that they would be required to pass the medical. Not sure how anyone would think they would be successful if they complete but fail it.

Surprisingly there are people who fail at the final hurdle when asked to do a D&A sample and they claim they didn’t know there was a requirement to be free of alcohol and drugs in a safety critical position.

I’m not sure how it would stand in court but would imagine it may be very costly for the individual concerned.

Are you alleging that the individual has been discriminated against due to a protected characteristic? If so, which one?

I’ve never heard of the ability to appeal against a medical outcome, although I’ve heard of people who have issues with the ECG and get referred only to find there is no underlying issue.

 

[Rockhopper]

If the person isn’t currently employed by anyone then I don’t see that they have any recourse to an appeal process. Even if they were employed the employer could terminate them within the first two years for no reason.
There is also no such thing as medical discrimination. There is in America though!
Coincidentally someone asked a very similar question just the other day but this was in relation to a Police Officer.

 

[LCC106]

Agreed regarding the recourse when not currently employed, however, I mentioned discrimination due to a protected characteristic not due to medical discrimination.

 

[Rockhopper]

The original poster suggested medical discrimination.

 

[ComUtoR]

I'm not sure what the candidate is appealing.

If they are appealing the results of the medical. The process is usually to get the B sample tested. However, it sounds like the medical result is clear and not in doubt as the medication has been taken and declared.

If they are appealing the interpretation that it was recreational, you would need medical professionals to determine if the substance found is within specific limits as this typically determines the level of usage. I would also query what specific substance was found. Was this THC ?

If they are appealing that they should have been given a contract of sponsorship then they need to look at all the documentation provided. In all cases that I've ever heard of. There is always something that says it will be subject to the results of the medical. Using the sentinel rules, they also state that the individual must be fit for work. Failing the medical will fall under that rule.

Appealing the rejection based on it being a legal drug. They would need the specific drugs and alcohol policy to see if that was breached. Just because something it legal and legitimately used, doesn't mean it's allowed. Network Rail may have a blanket ban or the Sponsor may have a blanket ban. They will need to policy to determine that.

I have read the RSSB statement and the Sentinel Rules and I don't believe you are interpreting them correctly. However, I do believe you are correct in that the company who booked the medical is required to carry out the investigation. Is the appeal that this didn't happen ?

Sadly, I do not believe that any appeal would change the outcome and the 5yr ban will stay in effect.

 

[43066]

I have read the RSSB statement and the Sentinel Rules and I don't believe you are interpreting them correctly.

Out of interest are those documents publicly available? I must say I was surprised to read that medicinal cannabis use is allowed by safety critical railway workers.

On the NHS website it seems that true medical cannabis is rarely prescribed and is generally only for people with severe epilepsy, undergoing chemotherapy or suffering from MS. Surely people in this position are unlikely to be medically fit to undertake safety critical work?

The various cannabis oils on the market aren’t actually proper medical products by the looks of things and aren’t regulated, so using them might well put someone at risk of failing a D&A test. This would be treated exactly the same as any other failure. Clearly if you’re someone who works on the railway (or wants to) using these products is going to be incompatible with that.

 

[ComUtoR]

Out of interest are those documents publicly available? I must say I was surprised to read that medicinal cannabis use is allowed by safety critical railway workers.

Sentinel rules link : https://info.railsentinel.co.uk/help-support/sponsors/sentinel-scheme-rules/ There is a link on this page for the pdf.

The RSSB statement is not public but if you have an RSSB account; its easily found.

On the NHS website it seems that true medical cannabis is rarely prescribed and is generally only for people with severe epilepsy, undergoing chemotherapy or suffering from MS. Surely people in this position are unlikely to be medically fit to undertake safety critical work?

Any genuine medical prescription would be exempted during the medical. However, this isn't a medical where the medication has been authorised by an employer. I also suspect that...

The various cannabis oils on the market aren’t actually proper medical products by the looks of things and aren’t regulated, so using them might well put someone at risk of failing a D&A test. This would be treated exactly the same as any other failure. Clearly if you’re someone who works on the railway (or wants to) using these products is going to be incompatible with that.

...The person involved will have tested positive for THC and therefore may not have been taking a regulated product as you correctly state. Even the NHS warns of taking generic over the counter medication and products from health stores.

We have lost a few Drivers to D&A policy and I pretty much guarantee that THC is not allowed. As far as I'm aware. CBD doesn't flag in a drugs test. CBN will flag. (CBD is Cannabidiol) (CBN is Cannabinol) and are slightly different.

When dealing with cases like these it is very important to see all the fine details of what was found and what levels there were. If there was a significant amount of THC then it would highlight recreational use.

Without the details, its impossible to say.

 

[43066]

Sentinel rules link : https://info.railsentinel.co.uk/help-support/sponsors/sentinel-scheme-rules/ There is a link on this page for the pdf.

The RSSB statement is not public but if you have an RSSB account; its easily found.



Any genuine medical prescription would be exempted during the medical. However, this isn't a medical where the medication has been authorised by an employer. I also suspect that...



...The person involved will have tested positive for THC and therefore may not have been taking a regulated product as you correctly state. Even the NHS warns of taking generic over the counter medication and products from health stores.

We have lost a few Drivers to D&A policy and I pretty much guarantee that THC is not allowed. As far as I'm aware. CBD doesn't flag in a drugs test. CBN will flag. (CBD is Cannabidiol) (CBN is Cannabinol) and are slightly different.

When dealing with cases like these it is very important to see all the fine details of what was found and what levels there were. If there was a significant amount of THC then it would highlight recreational use.

Without the details, its impossible to say.

Thanks! Definitely not something to be trifled with as you say.

 

[Aviator88]

Just to weigh in on 'over the counter' Cannabis products - my better half takes CBD oil for anxiety and is semi-regularly D+A tested at work. If you do decide to use these products, choose a brand that makes their lab reports freely available via means of a QR code on the packaging or similar and confirm for yourself that it contains no THC.

In the worst instance it may not preclude one from losing their job, but it shifts the accountability to the company supplying the report in any subsequent proceedings. Use with caution.

 

[43066]

Just to weigh in on 'over the counter' Cannabis products - my better half takes CBD oil for anxiety and is semi-regularly D+A tested at work. If you do decide to use these products, choose a brand that makes their lab reports freely available via means of a QR code on the packaging or similar and confirm for yourself that it contains no THC.

In the worst instance it may not preclude one from losing their job, but it shifts the accountability to the company supplying the report in any subsequent proceedings. Use with caution.

Clearly I have no idea whether your other half works on the railway, but I’d be very, very careful with things like this given how strict the D&A regime is.

Certainly my understanding of my TOC’s drug and alcohol policy is that anything beyond paracetamol/aspirin and certainly anything of this nature would need to be declared and approved by occupational health. Even things like over counter hay fever remedies can cause drowsiness, and would potentially lead to a fail if not declared and picked up on a med screen.

 

[Aviator88]

Clearly I have no idea whether your other half works on the railway, but I’d be very, very careful with things like this given how strict the D&A regime is.

Certainly my understanding of my TOC’s drug and alcohol policy is that anything beyond paracetamol/aspirin and certainly anything of this nature would need to be declared and approved by occupational health. Even things like over counter hay fever remedies can cause drowsiness, and would potentially lead to a fail if not declared and picked up on a med screen.

She works in a prison and, ironically, according to her contract's definition of the D+A process, cannabidiol products require the same candor of declaration as beetroot juice! It's non safety critical, ergo only illicit substances are barred.