The pharmacist was represented throughout the internal grievance processes and at the Employment Tribunal hearing by the PDA. In a detailed written judgment, the pharmacy team members and company managers were heavily criticised by the Tribunal, who found the pharmacy technician and a pharmacy advisor working with the pharmacist during the shift had undermined the pharmacist in his professional role as the Responsible Pharmacist (RP) and insulted him.
The pharmacist, who is black and of Nigerian national origin, complained to Boots about his experience, however the subsequent investigation was described by the Judge as “simply not fit for purpose” lacking a basic level of competence. The grievance manager was “not equipped” for an enquiry of this nature with no specific training on conducting grievances into serious allegations of discrimination. There were unacceptable delays in dealing with the complaints. The Tribunal concluded that the actions of Boots had seriously damaged the relationship of mutual trust and confidence, meaning that the pharmacist’s resignation in response to the numerous issues was a constructive unfair dismissal.
Events of 18 July 2020
The experienced relief pharmacist of many years standing, described by the Tribunal as “a dignified, sensitive and courteous man”, was working with two pharmacy trained members of staff during a time of Covid-19 restrictions. The pharmacist asked the staff to assist him in filing prescriptions and putting bagged items to the shelves which they refused to do, saying it was not their job. The pharmacy advisor refused to help the pharmacist resolve a problem for an Asian customer whose prescription had been sent to another store. This behaviour, in front of the customer, was described as being disrespectful and insubordinate.
The pharmacist later asked the pharmacy advisor to leave the pharmacy because of the way she was behaving and her refusal to assist an Asian customer earlier. The pharmacist reminded the staff that he was the RP and responsible for the safe and effective running of the pharmacy, to which the pharmacy technician said “I am the technician”. By this stage, both staff members shouted at the pharmacist and he was told that he would have to leave and that they were not prepared to work with him any longer.
Whilst the pharmacist was on the phone to his line manager seeking advice, the pharmacy technician tried to interrupt the conversation and shouted that he was lying in what he was saying to his manager. The Tribunal found the behaviour of the pharmacy technician to be disrespectful and unprofessional.
The two members of staff also phoned their own line manager who then proceeded to shout down the telephone at the pharmacist saying that he was an “utter disgrace”, and told him to leave the store without hearing his account of events.
The Tribunal commented that, by this stage, the pharmacy staff plainly felt empowered to be as rude as they liked to the pharmacist’s face. Insults included saying he had a bad reputation in the area and when the pharmacist disagreed and mentioned that he had been offered cakes by the staff in other stores, the pharmacy technician said, “I hope they are poisoned”.
The pharmacy technician also alleged the pharmacist was acting aggressively towards her and her colleague and threatened to call the police.
After further discussions with his line manager, the PDA member decided it was no longer safe for him to remain in store and left after signing out as the RP. The pharmacy technician asked him to stay until the pharmacy closing time, even though she had threatened to call the police earlier.
Grievance and Appeal Investigations
The pharmacist raised a grievance soon afterwards to complain about his treatment. The Tribunal noted that the most extreme of the matters he complained about was the threat to call the police, commenting that “for a black man to be reported to the police for aggression against two white women, is potentially a very serious matter indeed”. After receipt of the grievance, the company took over four months to start the investigation and finalise a meeting date, and only after the PDA had intervened to highlight the unacceptable delays.
The Tribunal observed the grievance investigation, although conducted by an experienced store manager, fell below a basic level of competence, and was not fit for purpose. The Tribunal said the “single most serious issue was the almost complete failure properly to investigate whether race was a factor in the treatment of the Claimant”. The grievance manager said in evidence before the Tribunal that he “liaised with our ER team quite considerably when considering [his] decision”.
Questions that should have been asked were not asked. It was “serious flaw” not to contact the two Asian customers and this suggested the grievance manager “was not approaching the investigation even-handedly”. The grievance outcome was sent on 15 January 2021 with all complaints being dismissed, apart from the one about delays in the investigation. The pharmacist appealed against the outcome and an area manager was appointed to hear the appeal.
The appeal manager did not address the obvious deficiencies in the grievance investigation process and outcome. He did nothing to probe further the conduct of the pharmacy technician and pharmacy advisor, with the Tribunal stating his enquiry into these matters was “superficial and lacked insight”. The appeal was described as “little more than rubberstamping of the original flawed process” with some minor concessions by way of a promised apology from the store manager who admitted she had shouted at the pharmacist down the phone. The Tribunal felt that in view of the fundamental flaws it had identified in the grievance investigation, the statement of the appeal manager that ‘I concluded that all other investigations were completed thoroughly’ was “perverse”.
After receiving the appeal outcome, the pharmacist resigned with notice on 3 April 2021 due to the failure to properly investigate his complaints of discrimination, the delay in addressing his grievances, and the fact that the promised apology from the store manager had not been received. He saw this as a reflection of his experience of being ignored throughout the process.
The apology arrived on 12 May 2021 almost 6 weeks after his resignation and the Tribunal agreed this was “the classic formulation of a non-apology” and it “must have rubbed salt in the Claimant’s wounds”.
Tribunal Conclusions
The pharmacist supported by the PDA brought multiple claims against the employer and the pharmacy technician. The Tribunal heard evidence over the course of the 5-day hearing from the pharmacist, the pharmacy technician, the pharmacy advisor and the grievance and appeal managers.
In a detailed decision running to 33 pages, the Tribunal upheld 7 claims of harassment related to race brought by the pharmacist against Boots and the pharmacy technician. These allegations all related to events on 18 July 2020. The Tribunal also upheld his claim of constructive unfair dismissal.
The Tribunal identified that both pharmacy employees who were working with him on 18 July 2020 had fabricated or exaggerated their evidence and were untruthful when being questioned under oath. The serious allegations they had made against the pharmacist about him being aggressive, were found to be false.
The Tribunal concluded that the repeated allegations of aggression by witnesses whose evidence was described as “distorted” and “exaggerated” led the Tribunal to conclude that the pharmacy technician and pharmacy assistant “were stereotyping (or racially profiling) the pharmacist as an aggressive black man”, when all he was doing was seeking to exert his legitimate professional authority, in circumstances where they were undermining it. It was clear to the Tribunal that the events of that day had a “very grave” effect on the pharmacist.
The Tribunal observed that the pharmacist’s line manager had made a written note of her conversations with the pharmacist which was consistent with his account of what happened. This line manager was working for Boots at the time of the hearing but was not called to give evidence. The Tribunal inferred this was because her evidence would have been unhelpful to Boots’ case.
Whilst being very critical of the investigation into the pharmacist’s grievances, the Tribunal concluded that there was no discrimination by Boots or its employees in how it dealt with the grievance investigation and appeal.
Summary
Whilst this case involved Boots, the PDA supports members working for other pharmacy multiples, independent pharmacies, and the NHS, who also experience discriminatory treatment. Pharmacists and trainees frequently report incidents of discrimination to the PDA, with cases which reach the point of a claim being issued getting resolved by a confidential settlement agreement before it reaches a court hearing, meaning no details can be published.
A Tribunal concluding unlawful discrimination related to race is rare and a Tribunal judgment including a detailed factual account of what happened to a pharmacist in a community pharmacy setting, even rarer still. The PDA plans to publish further analysis of the Tribunal decision and the issues it raises in due course.
The findings of fact about what happened that day, and how the complaint was handled by the company, resonate with PDA member experiences in other employers and the PDA believes this case may be indicative of a wider malaise in the community pharmacy sector regarding unlawful discrimination in the workplace.
Unlawful discrimination related to race is unacceptable and the PDA encourages members who encounter discrimination at work to seek advice from the PDA Member Support Centre. The PDA intends to lobby key stakeholders to encourage a wider debate in the profession about how unlawful discrimination relating to race can be tackled effectively in the pharmacy sector.
Full tribunal decision now published
The full tribunal decision is now published and is available here (click on the image). The PDA recommends pharmacists read for themselves the full facts.
This article was originally posted on 25 October.
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