Protecting Your Employment Rights

Whilst many of the professional arrangements and new customs and practices need attention, (and PDA will be providing support in these areas) professional considerations will inevitably develop and even change over time as agreements are reached and both employers and employees and locums and their representatives become more experienced with the RP regulations.

However, protecting the employment rights of pharmacists working as RPs will need immediate attention. The reason for this is that employers are required to consult on any new work place procedures with their workers before they are instigated especially, if these procedures may result in a variation to the employment contract. Such a process enables the workers to discuss and either accept, reject or amend by mutual agreement the changes that the employer has proposed. Usually, any such variation brings with it an opportunity to discuss also a new consideration - a discussion about fair remuneration to compensate the workers for any new responsibilities or more onerous work practices.

Act now or miss out!

However, if changes are simply made by an employer and no consultation is held, then after a short period of time, the changes are automatically deemed to have been accepted by the worker and a new implied contract is created. This 'back door' method avoids any discussions about the rights and wrongs, takes away much of the say that a worker might have had and also avoids the thorny subject of fair remuneration for the new roles and responsibilities.

There is no doubt that the RP regulations will place substantially greater responsibilities upon the shoulders of the RP and this will result in a significantly different relationship between employer and employee. The new requirements will have an operational impact, and change the nature of the employment contract and this will require a mutually agreed variation of that contract.

Not only are there issues under employment law, but there are also ramifications under Working Time Regulations and Health and Safety legislation in respect of training and risk assessments.

Our focus now must be on ensuring that pharmacists don't accept this change without due process, furthermore, they should not accept changes to their contract without taking advice.

We are concerned that some employers will want to handle the changes as a non-event as they may not want to alert their employees and locums to the fact that the new responsibilities bring with them new authority in the workplace and qualify for a consultation about additional remuneration. Already we are seeing signs that this may be a trend. We remind pharmacists that if they acquiesce to these changes without registering any objection, then they will be deemed to have accepted new terms without the need for any new consideration.

Consultation with employers

This can be done in one of two ways;

Instigated by the employer

As soon as the decision not to delay the RP regulations was made, we wrote to the HR directors of the following community pharmacy employers. Alliance- Boots, ASDA, Co-op, Day Lewis, Lloyds, Morrisons, Sainsburys, Superdrug, Tesco, Rowlands we also wrote to the NPA - the employers representative organisation.

Since the RP changes will effect many members, we have asked them how they would be seeking to initiate these changes to their employees' contracts and what consideration they will be giving their employees and locums for agreeing to enter into the change. Because we are a Trades Union, we have offered to assist by discussing these matters with them directly if this was deemed to be helpful, but there would be no legal requirement for them to do so, unless certain conditions could be met (see below). It is too early to describe what will result from this correspondence, however, if a consultation with the employee is indeed instigated by an employer, then we suggest that pharmacists contact PDA for advice on any new contract that may be offered.

Instigated by the employee individually

Employees are entitled to instigate a consultation and this can be done by notifying their employer in writing that they wish this to be the case. We have provided two template letters that may be used for this purpose.

• In response to contract changes proposed by employer:
  Responsible Pharmacist - Template Letter 1.

• To employers who have not discussed contract changes as a result of RP:
  Responsible Pharmacist - Template Letter 2.

The ICE committee

Employment law requires that employers must consult with their employees on any substantive changes that may impact upon their employment. One way in which this can be done, is when one group of workers consults with their employer on behalf of other workers. This position is enshrined in law and provides for the establishment of an Information and Consultation of Employee's committee. This involves a group of employees getting together and discussing matters of concern with their employers - such as the impact of the RP regulations. To establish such a committee, pharmacists need to comply with the Information and Consultation of Employees (ICE) Regulations.

The ICE regulations apply to businesses with 50 or more employees. They give employees the right to request an information and consultation agreement. An employee request must be made by at least 10 per cent of the business employees, which must amount to at least 15 employees and the employer must start negotiations with representatives of the workforce for an agreement no later than three months after a valid request has been made. It is possible that such a committee may already be in existence and if so, employee pharmacists should contact them immediately and notify us at the PDA Union so we can assist you with the necessary dialogue.

The Grievance or Collective Grievance

We fully recognise that taking up such matters with an employer can be a daunting prospect and we fully understand how any pharmacists may prefer a more centralised approach.

Furthermore, a well prepared employer or area manager will always be at a considerable advantage in terms of commanding an argument.

One solution could be that if the employers consult, but the result of the consultation is not satisfactory from an employee's point of view, alternatively, should they refuse to consult at all, then employee's are entitled to instigate a grievance. Furthermore, should two or more employees have a similar grievance (whether this is two, ten or three hundred employees) then a collective grievance can be instigated. The advantage of a collective grievance is that it would be administratively much easier to undertake, furthermore the PDA Union would be entitled to take up such a collective grievance with an employer on behalf of its members.

Collective bargaining by the PDA Union as an alternative

Another way forward would be for an independent Union to engage in collective bargaining with the employer on behalf of pharmacists employed by him. Union legislation provides for such an approach, however, for an employer to be required by law to consult with the Union, at least 50% of all pharmacists employed by that employer would need to be in Union membership.

Although the PDA has more than 15,000 members, this may not necessarily mean that more than 50% of pharmacist employees for any particular employer are in membership. We are currently undertaking steps to ensure that we satisfy these criteria. Clearly we urge all pharmacists who are not yet PDA members to join up without delay.

Act Promptly!

Irrespective however of which approach is chosen by pharmacists, the most important first step is to ensure that a consultation is instigated if one is not already being offered. Once a marker is put down and the workers concerns are noted, then even if a pharmacist initially works under the initial (unacceptable) terms, then these can not subsequently be deemed to be the new implied contractual terms. We urge pharmacists to use the appropriate template letter enclosed promptly.

So what will be the main negotiation points?

In communications with many PDA members we have become aware of the main concerns that are currently held and that are being discussed by some pharmacists with their employers.We provide some information about these issues for guidance.

Who is actually in charge?

Clearly, the master and servant relationship will still continue however, the RP will now have the statutory responsibility for securing the safe and effective running of the pharmacy. This puts the RP in a very different position as they did not enjoy this statutory role under the previous pre RP arrangements.

For those employees who work for employers who disagree that the new regulations are different, then we suggest that they study the feature on pages 6 to 8 to assist with their discussions. Any new contract of employment going forward must make clear who is responsible for what and this includes ensuring that the RP is given the authority to ensure the safe and effective running of
the pharmacy.

Rest Breaks

The problem with rest breaks is significant and it revolves around the fact that the pharmacy must have an RP signed on to be able to operate. However, if one applies Health and Safety legislation
and Working time regulation and also if one studies the relevant test case law, then whether a pharmacist is a locum or an employee, if they are to enjoy a rest break then they should sign off – hence rendering the pharmacy inoperable.

We became aware as to why this problem had arisen when PDA officials met with the DoH recently and were surprised to learn that when drafting the RP regulations, the DoH did not take into account the wider employment law as their focus was on healthcare legislation. The DoH expected that any operational matters that existed would have been picked up by the Society's consultation – the one that produced the RP toolkit. However, despite the fact that the position on rest breaks was consistently brought to the attention of the RPSGB by the PDA during their RP consultation, the RPSGB failed to take this problem into account. In reality, it would appear that the employment rights of pharmacists were not deemed important enough for anyone at the Society or the DoH to have wanted to have done anything about them in the RP regulations. The result is that many pharmacists will now be placed in a very difficult and unfair position.

The upshot of this important omission is that if rest breaks can now only be taken if the RP signs off, thus rendering a pharmacy inoperable then we believe that many pharmacists will be expected
by their employers to forgo their statutory rest breaks so that the pharmacy can continue to operate, or alternatively, they will be pressurised into taking their breaks whilst still signed on as an RP using the two hour absence provision. This will cut through the thrust of Employment and Health and Safety legislation and may be to the significant detriment of pharmacists.

Make no mistake, if signed on, an RP will be held legally accountable if something goes wrong in the pharmacy whether they are present or not and irrespective of what they have agreed privately with their employer with respect of their work break.

It gets worse!

If concerns about employers were not bad enough, the noises coming from the RPSGB about rest breaks are also very worrying.

In September at the British Pharmaceutical Conference the RPSGB announced that it would now campaign for pharmacists to receive their rest breaks.

However, in a letter recently sent to the PDA from the RPSGB President Steve Churton he has stated;

"I think that there are circumstances when it is very reasonable to remain as the RP during a rest break and times when this might not be considered appropriate. Furthermore, whether or not a RP takes the decision to 'sign off' during a break is a matter for the individual concerned and their terms of employment. Speaking personally, when I was Superintendent of Boots, I was content to remain the Superintendent and responsible for the activities of the company when I was on a rest break."

This statement is very unhelpful as there was never a requirement for any superintendent, Boots or otherwise to sign on when arriving at work and sign off when they went home. The simple fact is that the two hour absence provision should not be used to accommodate rest breaks not because it is professionally prohibited, but because it will represent questionable employment
practice which will conflict with the law on rest breaks.

The RPSGB should be supporting pharmacists and helping to protect the health and safety of pharmacists, not encouraging practices that will patently undermine these. A rest break must be a full physical and mental break away from the workstation, a person cannot be expected to carry any responsibility for the workplace while they are on statutory break.

This means one of three things;

1. Another pharmacist must sign on to be a RP for the duration of the original RP’s rest break.
2. The Pharmacy must cease to operate while there is no RP signed on.
3. A way forward is agreed, ideally between employee representatives and employers as to how this quandary can be best managed to prevent large scale problems for the public. This would need to be an agreement that does not disadvantage pharmacists nor one that would result in stress and fatigue through a lack of rest break.

Risk assessments

Whereas under the old pre RP arrangements, the pharmacist was required to work under protocol or SOP, these were largely professional or employment contract requirements. If under the old regime the pharmacist was unhappy about aspects of these protocols, then he/she would notify the employer and seek a change. However, under the RP regulations, it is the RP who will be
held statutorily liable for ensuring the suitability of any pharmacy procedure. It is the RP who is charged with the task of reviewing or amending an SOP either periodically, or in the event of a critical incident. This means that the RP must be able to complete risk assessments to undertake this task. Under Health and Safety legislation, if the worker is required to complete such risk assessments, then it is the employers responsibility to provide training. Any new contract of employment must make clear that responsibility for providing such training is that of the employer and that such training will actually be provided.

Remuneration

Remuneration must reflect the new responsibilities for all RPs.

A superintendent pharmacist carries greater responsibility and is exposed to greater liability than an employee or locum pharmacist, consequently, the superintendent enjoys greater remuneration.

A Responsible Pharmacist will from October 1st carry greater statutory responsibility and will therefore be exposed to greater liability than was the case when they where a ‘pharmacist in
personal control’ for this added risk, the RP should enjoy greater remuneration.

What about Locums?

It is well known that unlike employee, self-employed subcontractors are not directly protected by much of the employment legislation. However, locums still enjoy significant protection through professional regulation, healthcare law and Health and Safety legislation. Additionally, locums are also protected by contract law and by the terms laid out in the contract for services that exists
between them and their employer. To this end, the PDA is currently updating its contract for services for use by locums, to ensure that it contains many of the new issues that spin out of the RP regulations. This can be downloaded from the RP tools section of the PDA website. This document should be used instead of the existing locum contract for services and it should be served on the employers as soon as possible. Whether self-employed or not, under Health and
Safety law, employers must ensure that they do not cause any of their workers (including locums) to suffer through the infringement of their basic Health and Safety rights – this is important
in the area of rest breaks. Employers that are requiring locums to work straight through without taking a break could be exposed not only to liabilities under Health and Safety legislation,
but also under professional regulation via the Code of Ethics. Locums will also now be protected by the RP regulations which make clear in law that it is the RP who is responsible for ensuring the safe and effective running of the pharmacy. This means that the behaviour of employers towards their locums must reflect the new realities and the new control that the locums will have over the pharmacy environment as RPs. If any employer seeks to question this, then they should be shown the relevant statute (which is also contained in the RP Tools section of the PDA website).

Watch this space

There is no doubt that the government’s belated decision to proceed with the October 1st deadline regardless of the professions unpreparedness will lead to a general hiatus not only in the professional, but also in the employment sphere. This will be a fast moving situation and we ask that pharmacists keep a close eye on the PDA website as we will be publicising professional and employment developments as soon as they occur.