Pharmacist settles for £30,000 in unfair dismissal case

There are six potentially fair reasons that employers can use to dismiss employees, one of which is 'conduct' and generally speaking, an unfair dismissal claim can only be brought if the employee has a minimum of one years' continuous service.

In one recent case the employer relied on conduct as its reason for dismissing a pharmacist. They alleged that he failed to ensure adherence to the Standard Operating Procedures (SOPs) by staff. It was therefore not the conduct of our member that was being called into question (something that he had done) but the actions of others that he had failed to supervise.

Two dispensers complained that our member did not carry out a clinical assessment of some prescriptions and they believed that they were handing out medication to patients contrary to the SOPs.

Our member was adamant that he had carried out a clinical assessment of every prescription and that there should never have been any occasions where the dispensers would have given medication to a patient without this being done. He was certain that the staff must have been mistaken and in the absence of any other explanation must have had a more sinister motive in raising such a complaint.

During the disciplinary hearings, at which we represented the member, we were appalled at the quality of investigation and asked for examples. No such evidence was forthcoming (not even a single example) and the employer justified their action by saying it was 'common occurrence'. We pressed the employer to ask the complainants whose instructions they had been working under when handing out medication that had not been checked if this was indeed the case; the employer chose not to establish this information.

Our member was summarily dismissed and the decision was upheld on appeal. Having exhausted the internal process he brought a claim for unfair dismissal in the Employment Tribunal (ET). The pleadings were the lack of a reasonable investigation by his employer into the matter; the difficulties encountered with being away from the dispensary (on the employer's insistence) in the consultation room conducting MURs for example; and the fact that the staff had been trained how to dispense properly and had worked as dispensers for a number of years. If they who had knowingly breached the SOPs were not disciplined, our member, who had no knowledge of the breach, should not have been disciplined either. He made it clear that he was always in control of the pharmacy and had an understanding with trained staff that all medication should be checked by him with regards to the clinical and accuracy check.

Our member had also submitted a grievance to his employer prior to the termination of his employment which had not been dealt with until his dismissal. It was during the grievance investigation meetings that the company eventually sought to question the claims made by the staff. Those staff who had earlier claimed to believe that they were handing out medication which had not been checked by a pharmacist now said that they "did not know" if checks were carried out. Unfortunately this was too late for our member.

In a game of brinksmanship, the employer's representatives contacted us with an offer of £30,000 to settle the case one hour before the close of play the day before the tribunal.

As this case did not proceed to a hearing we cannot be certain that if a similar situation occurred the case would be successful at trial. Had the case come before a judge he/she would have had to consider;

1. Did the employer have a fair reason for dismissal? (on conduct grounds)
2. Was a fair procedure used? (investigations, disciplinary and appeal meetings etc)
3. Was the decision to dismiss within the range of reasonable responses open to a reasonable employer?

The latter point is perhaps the most important of these and essentially relates to the concept of fairness. This is where we consider what the actions of a reasonable employer would have been in the circumstances. Put simply, the question asked will be: Is it possible that a reasonable employer, faced with these facts would have dismissed? It is important to bear in mind that where an employee has already been subject to various stages of the disciplinary process such as warnings etc, it is not difficult to make a case to dismiss.

This was not an issue in this particular case as the pharmacist had an exemplary record.

The action by the employer has significant implications for those of you working as Responsible Pharmacists believing that you can trust all your staff to follow the SOPs. The case also highlights the very real problems that can stem from an employer's failure to conduct a reasonable investigation should staff make allegations about you and the low standard of proof that dismissal requires