High court legal victory strengthens health and safety rights for locum pharmacists

The PDA welcomes the High Court judgment secured by Independent Worker Union of Great Britain (IWGB), in support of its members, which extends health and safety rights to self-employed workers.

Thu 19th November 2020 The PDA

The PDA has, since the pandemic, heard shocking stories of pharmacies failing to protect locum pharmacists by not providing PPE in the early part of the pandemic. In such cases, the PDA employment team had to advise members to make protected disclosures (whistle-blow) in order to have their concerns addressed and in some cases the union raised the issues directly with the Superintendent to highlight the health and safety risks.

Those particular cases have been resolved before legal action, however, that might not have been the case and the judgment secured by the IWGB strengthens the position for individual locums should future cases arise.

PDA Senior Employment lawyer, Deborah Franks explains the legal position relating to an employer’s responsibility for locum health and safety:

The difficulties locums faced were in relation to the lack of employment rights afforded to workers and where PDA lawyers supporting members had to rely on the Health and Safety at Work Act to be able to bring the responsibility to employers’ attention. However, the decision handed down on Friday, 13 November has filled the gap where that protection was not previously provided and members can directly refer to this case in support of any further such health and safety issues that arise from the pandemic or other health and safety issues.

The facts

The Independent Worker Union of Great Britain (IWGB) represents low-paid workers, including migrants and those within the ‘gig economy’. In the early part of the pandemic, the union’s legal department received around 144 queries regarding COVID-19 issues, including lack of PPE, failure to implement social distancing and failure to package COVID-19 samples correctly in order to protect medical couriers and they felt vulnerable without this PPE.

It became apparent that employment and health and safety law did not adequately protect workers who did not receive the protection of employees (under section 230 of the Employment Rights Act 1996).

The Law

Under the EC Directive, the UK should have transposed Measures into domestic law to encourage improvements in the health and safety of workers at work and minimum health and safety requirements for the use by workers of PPE in the workplace (‘the PPE Directive’). The union’s argument was that workers should have such protection but the UK domestic legislation, mainly within the Health and Safety at Work etc Act 1974 (HSWA) and the Employment Rights Act 1996 (ERA), only gave this protection to employees.

In its judgment, the High Court held that the UK had failed properly to implement Article 8(4) and (5) of the EU Health and Safety Framework Directive (No.89/391) by confining protection from detriment on health and safety grounds under S.44 of the Employment Rights Act 1996 to employees.

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Whilst we may represent different groups of workers, the trade union movement work together in mutual support to maintain and improve rights for all. The PDA are grateful to the IWGB for their success in pursuing this case, which all unions can now rely upon in defending self-employed members.

This helps demonstrate the value of the trade union movement and why anyone, worker, employed or self-employed, should be in the appropriate independent trade union for their role.

Advice for PDA Locum members

If PDA members have any PPE or other health and safety issues when working as a locum, please contact the PDA Service Centre on enquires@the-pda.org Our member advisors will be able to support your call and if necessary connect you with our employment team.

The Pharmacists' Defence Association is a company limited by guarantee. Registered in England; Company No 4746656.

The Pharmacists' Defence Association is an appointed representative in respect of insurance mediation activities only of
The Pharmacy Insurance Agency Limited which is registered in England and Wales under company number 2591975
and is authorised and regulated by the Financial Conduct Authority (Register No 307063)

The PDA Union is recognised by the Certification Officer as an independent trade union.

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