As part of our support to members we have represented a number of individuals through company grievance processes, when they could not get answers to the many questions they had asked.
These grievance meetings tend to have a common pattern, in that company managers do not provide answers at meetings, preferring instead to seek “Head Office” advice. Head Office advice often takes months to arrive and in one case the grievance process took five months to answer the questions. We are of the view that they are treading very cautiously because they recognise that the true impact of the RP regulations upon their operations may have unwelcome consequences to their levels of control and also potentially a significant increase in their costs.
Nevertheless, from the responses gained to the questions recently put, the PDA can now update all members on the latest employer interpretation of the RP regulations.
Rest Breaks
Alliance Boots has provided the most clarity in this area and confirms that it does not direct its pharmacists to remain “signed on” during rest breaks. The most recent response that we have had on this matter recognises what the PDA position has been all along which is that for a rest break to be taken lawfully (under Working Time Regulations) then the worker must be enjoying an uninterrupted break, they must not be contactable nor be required to remain on the premises.
The Boots advice unequivocally states; “The decision as to whether to remain signed in or to sign out as RP during such times [rest breaks] remains with the individual pharmacist..” “No action will be taken against an RP who chooses to sign out during his or her lunch break.”
This position is welcome, but it is a great shame that Alliance Boots do not encourage signing off at break times and instead qualifies its guidance by going on to say “Whilst any RP has the autonomy to decide to sign out during their lunch break this may affect the number of stores in which they can be offered work, or the number of suitable shift patterns.”
It is disappointing that after reinforcing the right for an RP to sign out and take a proper break, Alliance Boots then produces a situation which creates pressure for pharmacists to abrogate their statutory right to a physical and mental break by intimating they may face a limitation in employment opportunities if they sign out whilst doing so.
Rest Break Procrastination
After considerable pressure applied by the PDA’s legal team onto the Department of Health, in November 2009, the DoH and its lawyers conceded that the RP regulations had not taken into account the wider employment legislation. The DoH agreed that the RP should not remain signed on during a rest break as this was in conflict with the Working Time Regulations, which requires rest breaks to be periods where a worker must be enjoying an uninterrupted break, they must not be contactable nor be required to remain on the premises. Since then, the plan to find a professional solution to this quagmire was handed to the RPSGB.
However, in the two meetings to which pharmacy body representatives were invited, no meaningful progress has been made. The PDA is now receiving little in the way of progress reports when it pursues the RPSGB for information. It is a great shame that the RPSGB managed to clarify that large multiples could operate certain aspects of their business before the arrival and after the departure of the RP in August of 2009 and yet it appears to be still the issue that most affects pharmacists and impacts upon patients, that of rest breaks, is a matter that it is procrastinating over nearly one year later.
Responsibility & Liability
It appears to us that the largest employers do not accept that being an RP brings significant additional risk or changes liability, nor do they accept that the RP regulations involve any changes to express contractual terms of employment. We are not aware of any increased pay awards for this new role. Consequently employers have chosen not to consult with their pharmacist workforce. However, employment disputes being handled by the PDA suggest that the “No Change” approach prevalent in these organisations is in reality a façade.
Employment Risks
In one case, two pharmacists working at the same pharmacy were called into disciplinary meetings due to allegations they had both gone home at the end of their shift, but before all the care home business was finished. The pharmacy had been very busy that day and they only learned about the care homes late on, leaving no time to complete them. The RP received a final written warning because of his RP role and the other (non-RP) was given a lesser sanction. This case suggests that employers might view the RP as having a greater responsibility when considering allegations of a disciplinary nature.
The PDA organised an appeal against this decision for several reasons; one being that the disciplinary letter confirming their sanction was produced days in advance of the actual meeting. Disciplinary meetings are supposed to be impartial, have no predetermined outcome with the disciplining manager reaching a decision based on the facts and any mitigation brought up by the employee during the meeting. Clearly the letter exposed the company processes as a sham and it had no option but to grudgingly rescind the action, otherwise it would have faced costly litigation from the PDA for such a gross failing.
Another large multiple was struggling to find evidence to prove that a long serving pharmacist was responsible for a customer’s medicine going missing from the pharmacy a few weeks earlier, when it wasn’t delivered. The pharmacist was adamant she did not see it after checking it. After four stressful meetings, the company took the new approach that as the RP on duty at the time and that therefore she was responsible for securing the safe and effective running of the pharmacy she was responsible in any event for the pack going missing.
Contactable Pharmacist
Alliance Boots have clarified the role of the “Contactable Pharmacist”. If an RP whilst signed on, but absent, is not contactable or able to return within reasonable promptness, another pharmacist – a “Contactable Pharmacist” must be found, according to the regulations. This other pharmacist must be “available and contactable” which the company define as meaning s/he is contactable by telephone and available to attend to matters brought to his/her attention by the pharmacy team who are still on the premises. The Contactable Pharmacist may need to get to the pharmacy within reasonable promptness in serious circumstances. The company has clarified that this ‘other’ pharmacist may decline to be the Contactable Pharmacist and in any event there is no additional remuneration or recognition for this role.
Liability
Numerous members report that whilst they are not yet signed on or signed on, but absent, members of staff are engaging in activities that are either unlawful under the regulations or have the potential to attract the attention of the regulator. It is clear that many members of staff are confused by what can and can’t be done in the absence of the RP.
The NPA has continued to pronounce that the RP regulations do not change any relationships between employer and employee.
However, wearing the hat of being the pharmacy insurer, the NPA may be taking a view that is not consistent with that approach. During one recent civil claim, it argued that the RP on duty at the time the prescription is handed out (not when it is assembled) is 100% liable in the event of the wrong medicines being handed out to a patient. In this case, the pharmacy owner (an NPA member), made a dispensing error which was missed during the checking process, then bagged and left for collection. The patient called to collect it several days later, when another RP was on duty. The patient took some incorrect medication and claimed compensation from the pharmacy. However, the NPA passed this claim directly onto the RP, arguing that under the new RP regulations, the RP should be held responsible. The PDA has already settled the 100% liability (in excess of £4,000) and we now intend to legally challenge the NPA for a fair contribution to these costs.
Whilst this episode in itself, does not signify that there has been a wholesale policy change at the NPA in relation to RP liability, it nevertheless is the first time in our experience that the RP regulations have been cited as a justification for passing 100% of the liability across to another pharmacist, where the error was actually committed by the owner some days earlier.
Professional Autonomy
Prior to the RP regulations, many pharmacists found that non pharmacist company managers readily interfered with and even countermanded their professional decisions. This has not abated since the introduction of the regulations despite the enhanced autonomy the regulations were supposed to give. RPs are frequently pressurised to change their minds when they attempt to close the pharmacy rather than to continue operating with unsafe resources. Requests for additional staff and resources by the RP so as to secure safe and effective operations are often denied or ignored.
A supermarket recently dismissed a pharmacist RP who exercised her professional judgment as RP and decided that a member of staff was neither competent nor capable of working in the dispensary. The supermarket decided that the aspiring dispenser’s ‘right’ to be trained under their dignity at work policy, overrode the pharmacist’s professional decision on how best to satisfy a statutory responsibility to secure the safe and effective running of the pharmacy. The involvement of the superintendent did not provide support to the RP and merely reinforced the corporate view that the RP must work with this person or be dismissed, even though the pharmacist had used objective criteria to demonstrate that this aspiring dispenser was incompetent and a risk to patient safety.
The Hospital sector
A more detailed analysis of the RP position in hospital pharmacy can be found in the Hospital edition of Insight on pages 22 and 23.
What is the point of the RP regulations?
The PDA continues to support members in many individual cases of RP conflicts providing support and assistance where possible. However, the question that is now presenting itself is that if a Stop Remote Supervision campaign is able to forestall remote supervision, then what exactly is the point of having the burdensome RP regulations at all? They are neither in the public’s nor in the profession’s interests. The PDA will be asking the government this question as we move forward and as the Remote Supervision issue is settled one way or another.
At that point, we will be seeking membership support. Beyond that we believe that there is much to demonstrate the caution with which employer led pronouncements on the effect of RP regulations should be regarded. Should pharmacists have doubts or concerns, they should seek advice from the PDA.