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Tesco issues new employment contracts to pharmacists

A number of pharmacists who work for Tesco have been asked to sign new employment contracts with contractual changes. The PDA Union issues advice

Tue 10th July 2012 The PDA

Please note that this article was written some time ago. As such, the contract referred to here and/or the law or supporting case law may have changed since then and the guidance the PDA would offer may now be different to that which is written here. This article should not now be relied upon as a source of legal or other advice – PDA members should contact the PDA for up-to-date advice on such issues. The article is included here for illustrative purposes.


Introduction of the contractual changes

 

The method of communication of such has been varied across a broad spectrum from receiving a draft copy of an employment contract in an envelope with a compliment slip requesting a signature to  Area Managers (albeit telling employees that their contract was changing by phone) requesting local HR to secure the signature of the employee to the new contract without any explanation or consultation.

 

From the analysis done of the contracts that have been sent to us, some pharmacists have had contracts of employment unchanged for some time and others who have joined Tesco at a later date have already agreed to  some of the clauses that appear in the new contract that those with longer service have not yet done so. The changes to the contract will therefore have greater impact on those with longer service.

 

In general certain statutory minimum terms  in employment contracts can be varied by consent if the parties except them.  Without consent the variations are not recognised as lawful. However, in past cases the courts will treat an employee as having consented to the variation if he or she does not object to the change within a reasonable period of time.

 

Strong evidence of mutual agreement is required to establish that a contract was lawfully varied. Any change that is imposed by Tesco’s in the absence of agreement is likely to breach the contract.

 

CHANGES to the Contract that may cause concern

 

 

 

Hours of work

Contained in this clause is the expectation that you  work additional hours than your contract states to suit business needs. The clause does not express whether this will be paid or unpaid or whether time in lieu can be taken. You may need to refer to the staff handbook to see if this is specified.

 

Pay

Employees will no longer be able to work as a locum for Tesco’s, if already an employee. This clause is silent on whether they can work as a locum for any other contractor.

 

References to the Staff Hand book.

In several places the staff hand book is referred to.  Where this is the case it is not clear whether the extended issues related to the particular clause cited, are meant to be contractual. However, in the last clause of the document headed ‘summary’ it states ‘offer letter, staff hand book and any other document referred to form part of your terms and conditions’.

 

 

This is significant as non contractual benefits/provisions/policies can be modified or withdrawn at any time lawfully. These are normally placed in the staff hand book because such rules are not in themselves of a contractual nature but are to be regarded as collateral instructions to the employee on how the contract should be carried out.

 

Employers often argue as did Boots in the PDA’s recent case against them, that even where rules relating to an aspect of the employment relationship are contractual they may nonetheless be able to change the rules without seeking agreement. This is not correct. Everything turns on the construction of the contractual terms.

 

Clear language is required to give one party the right to vary a contract unilaterally. Consequently, it is important for employees to locate the staff handbook and look at the connected wording. Further, what is written in your ‘offer letter’ and ‘any other documents’ that they refer to in the contract to identify what other terms you may be bound by.

 

Holidays

This clause is silent on the rate of pay for bank holidays. However, there is reference to the staff handbook.

 

Sunday Overtime Premium

This rate or multiplier is not stated.  If changed from the current rate this would be a fundamental change as it affects the employees pay. There should therefore be consultation on this point if Tesco’s seek to remove this.

 

Conflict of Interest

The way in which this clause is phased is very wide and restrictive. It is in our opinion unreasonable. The clause suggests that employee’s have to obtain permission from Tesco’s when working for others; whether work done is paid or unpaid. This goes beyond protecting their business interests. Employers can not rely upon restrictive covenant clauses that are no more than is reasonable to protect their interests. This goes beyond what is reasonable and should be resisted.

 

Registration

This has been introduced to make it conditional that you have to be a fully registered pharmacist to practice as one. This in itself is expected. However, it means that  any matters that might affect your registration must be reported to your employer. The employer also has the discretion to terminate your employment. An employer can lawfully dismiss on the grounds of capability qualification. Therefore it is important that if employees find themselves in a situation where their ability to practice is compromised they are aware that this could effect the employment relationship adversely. The clause does not mention who will pay for the Registration.

 

Accreditation

This clause has been drafted broadly. It does not take into account employees who for reason of conscience or religion would not take part in carrying out certain services.  If accreditation needs to be paid for, it is not clear who is going to pay for this. The clause is clear; if you do not become accredited Tesco have the scope to potentially dismiss on the grounds of capability.

 

Pension

It is important to note that if your previous contract gave you the right to be in the last salary pension scheme, if this contract is signed you may well be entering into the a pension builder pension. If this is the case there has been no consultation on the matter and is a fundamental change that should be resisted if you find yourself in the situation.

 

Notice

In some contracts employees will have a 4 weeks notice period. This is to be changed to 13 weeks. Although this is reciprocated this does not benefit employees who wish to exit quickly when they require it. The PDA recommends that you resist this on the grounds that there is no reasonable business rationale for it to be extended. The supply and demand situation will not preclude Tesco from replacing you if you leave with a month notice and it could be detrimental to you if you want to change jobs in a an increasingly competitive workplace.

 

Collective partnership agreement

A Collective Agreement can bind pharmacists  whether you are a member of the Union that was party to this agreement (with the employer) or not. PDA strongly recommend that a request be made to see the details of the agreement that is referred to in the contract.

 

Changes to your terms and Conditions of employment:

‘Any changes to the details provided in this document… will be communicated within one month after the change’

The practical effect of this clause is that it gives the appearance that Tesco can make changes at any time it wishes, even to the detriment of its employees.

Such terms should therefore be resisted at all costs and serious consideration      should be given to simply refusing to contract on such ‘loose’ terms.

 

Case law suggests that the courts are generally reluctant to find that employee’s have consented to contractual changes in the absence of an express agreement to that effect. This is particularly the case of terms which do not have immediate effect.

 

An employer cannot give themselves the ‘carte blanche’ right to make any changes to the contract simply by inserting a contractual term to that effect.

 

Although the clause gives the employer the right to vary unilaterally the terms of the contract, this right should be confined to changes of a minor and non fundamental character.

 

What are your options;

  • You may agree to the changes by signing the contract and simply carry on working under the revised terms. Even if you don’t sign the contract it would be deemed to be acceptance if you don’t make any objections.
  • If the breach is a fundamental breach going to the heart of the contract you can resign and claim to have been unfairly constructively dismissed. These claims are difficult to prove and we would advise against resignation.
  • You can simply refuse to work under the new terms -, the ball is back in the employer’ court. If the employer dismisses the employee he is likely to face an unfair dismissal claim and will have to show the reason for the dismissal and that he acted reasonably.
  • If your pay is affected in any way (premium rates altered for instance) you can simply stay in work and bring an ‘unlawful deductions of wages ‘ claim in the employment tribunal

 

Practical Steps.

 

Employees should write to Tesco including the following in the written correspondence:-

 

  • Requesting evidence of the consultation and ask them to define the process and at what point you are currently at in that process.
  • Requesting clarification on the new clauses that affect you and challenge the change if you believe them to be unreasonable
  • Requesting copies of the documentation referred to in the new draft employment contract
  • Refusing to sign the new contract until you can reach agreement
  • Indicating that you will continue to work but are working under protest until the matters are negotiated fairly.
  • Keep the PDA informed of any and every piece of communication and development

Please be aware; what ever decision you take at this juncture will bind you and you cannot reverse any agreement that you have given or contract you have signed.

The PDA Union will support members who object to the terms and face any dismissal proceedings as a consequence.

 

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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