Responsible Pharmacist

•Negotiating new terms•Rest breakspages 8-13

STOP REMOTE SUPERVISION

Vote for the candidatesin the RPSGB electionspage 3

PDA Annual Conference

27th-28th February 2010Birminghampage 4

PDA Plus

Membership benefitsscheme extendedpage 17

insightResponsiblePharmacistAre employers burying their heads in the sand?

Do your bit to halt remote supervision

The magazine of the Pharmacists’ Defence Association

winter 09

Community Edition

| insight winter 2009 www.the-pda.org2 Visit our website www.the-pda.org

Chairman’s letter

Contained in the Health Act consultation of 2005, was theproposal for the Responsible Pharmacist (RP) and RemoteSupervision – the plan to operate a pharmacy in the absence ofa pharmacist.

Armed with the experiences of handling thousands of disputesbetween employers and pharmacists, we felt that remote supervisionwould not lead to the development of exciting new roles forpharmacists, instead, it would simply lead to a huge cost cuttingexercise at the hands of the large pharmacy multiples. This wouldneither be in the profession’s nor the public’s interest.

We actively lobbied parliament and secured influential voices ofsupport. On March 1st 2006 in the House of Lords Baroness Murphysaid;

“It seems to me – and this has been raised by the PDA too –that the provisions, may have the unintended consequence oflessening the publics access to a community pharmacist inmore deprived areas and provide fewer safeguards for patientsin terms of supervision for their medications. I fear thatcompanies with several pharmacies will simply reduce thenumber of pharmacists they employ, in remote rural and innercity areas where there are recruitment problems.”

We were pleased when the government decided that it would putremote supervision onto the back burner, focusing solely on the RPprovisions.

We weren’t ready

As we approached the launch of RP, it was obvious that the professionwas simply not ready and the PDA called for a delay. Time was neededto work through the operational aspects as many of the proposalswere simply unworkable.

In July 2009, the government seriously considered our call for a delay,but we knew that if it was to succeed, then the RPSGB would need tosupport it.

Sadly, at the RPSGB Council meeting of July 2009, with severalsympathetic Council members unable to attend, only 3 members ofCouncil voted for a delay. The RPSGB refused to back our call and thegovernment proceeded.

So what have we learned?

The RPSGB Council could have played a pivotal role in ensuring thatthe RP regulations were delayed and then revisited. We could havebeen looking at an implementation date of Spring 2010. However, dueto the Council’s intransigence, pharmacists have been landed with aset of administratively burdensome and unworkable regulations.Worst of all, they do not deliver what they were intended to.

1. They do not allow the sale of GSL medicines from pharmaciesduring the lunch break of pharmacists.

Employment legislation requirespharmacists to sign off if they are taking arest break (see feature on page 8).

2. The two hour absence was supposedto enable pharmacists to developadditional healthcare roles away fromthe pharmacy.

Instead, some large multiple operators areusing the two hour absence to extend their business operational hoursin the absence of a pharmacist so as to reduce costs.

We believe that if Remote Supervision were to be allowed then wewould see significant numbers of pharmacies operating in theabsence of a pharmacist for much longer periods. While this woulddeliver significant cost savings to the large pharmacy operators andwould be entirely legal, it would be very detrimental to both thepatients and the pharmacists interest.

A pharmacy without a pharmacist is never as safe as one with apharmacist present.

So what next?

The government now intends to revisit its remote supervisionproposals and if we are to halt the plan, then we will need to put thelessons learned to good use. Crucially, the RPSGB has a pivotal role toplay; it has considerable assets at its disposal, these are pharmacists’assets and we must apply them to this task. This may involvesignificant national PR work, parliamentary lobbying, generating mediainterest and harnessing the concerns of patient interest groups.

If we can be sure that the RPSGB is against Remote Supervision andthis is further re-enforced by a large representative union like the PDA,then a future Health Minister will find it very difficult to ignore suchconcerns.

If the new PLB can do this, then it will surely become more relevant tograss root pharmacists. It would seek to look after the public and theprofessional interests by resisting legislation which will be in theinterests of neither.

And this is why the PDA has taken the extra-ordinary measureto support certain STOP REMOTE SUPERVISION candidates inthe current election to the new Professional Leadership Body(PLB).

I urge all pharmacists to read the election feature adjacent whichdetails the candidates being supported by the PDA, for if they are allelected, then they will ensure that the RPSGB will not be repeating itsembarrassing performance over the RP.

If you want to deal with the threat of Remote Supervision, thenplease vote for all of these candidates.

Mark Koziol, Chairman, The PDA

Vote now to stop remote supervision

ContentsSTOP REMOTE SUPERVISION - RPSGB elections p3

The PDA Annual Conference p4

News p5 & p14

Does the PDA need to know? p6-7

Responsible Pharmacist special feature p8-13

Give us a break p8-10Contractual implications p11-13

The PDA Union; progress so far! p15

Discrimination overview p16

PDA Plus – enhanced membership benefits scheme p17

Professional Regulation - A Shakespearean tragedy p18-19

Changing your ‘Contract of Employment’ p20-21

Has my employer gone nuts? p22-23

We are being told that the profession demands a debate about Remote Supervision, but by whom?Some senior figures working for large multiples are keen to see the supervision rules ‘changed’ – but why?

When the PDA first suggested that the multiples would use Remote Supervision to allow them to runpharmacies in the absence of pharmacists for cost-cutting purposes, we were accused of scaremongering.However, when the two hour absence under the RP regulations became available, some of the multipleswasted no time in extending their business hours in the absence of the pharmacist.

Why voting for these election candidateswill deal a blow to Remote Supervision

Bob GartsideUn-reserved & CommunityWales

Tristan LearoydAcademic England

Martin AstburyCommunity England

Graeme StaffordUn-reserved England

Shilpa GohilIndustrial England

Sid DajaniUn-reserved England

Lindsey GilpinCommunity England

Keith DaviesUn-reserved & CommunityWales

Graham PhillipsUn-reserved England

John GentleCommunity England

Catherine ArmstrongPrimary Care England

So let us not kid ourselves, those supporters of Remote Supervision whogenuinely believe that it could lead to new roles for pharmacists need tounderstand that pharmacy operates in a hostile commercial world whereprofits are maximised through cost reduction.

The PDA believes that if the new roles can be specified, then pharmacistswill come forward to deliver them, let us not abandon the unique andaccessible role of the community pharmacist.

Contrary to popular belief, this is not just a community pharmacy issue.If Remote Supervision is allowed to go ahead, then its effect willinevitably spill over to all sectors of pharmacy.

What is needed is a solid team in place at the Professional LeadershipBody, one that will take no nonsense from those who may seek to reducecosts at the expense of patient safety.

The PDA invited all pharmacists to support the PDA’s campaign byagreeing to stand as STOP REMOTE SUPERVISION candidates. We wereapproached by 25 candidates involving both PDA and non-PDA membersand a meeting was held so that the candidates could choose fromamongst themselves, those that should become formal campaigncandidates.

One of the selection criteria used was that the candidates possessed agood understanding of a wide range of issues facing the profession. Itwas always important to ensure that if they get elected, then they mustbe able to deal with matters way beyond just remote supervision.

We hope that you agree, that the candidates selected represent a goodmix of experience, passion and specialist knowledge. They come fromseveral sectors and we believe that they would make an excellent teamto lead our profession.

The election rules are complex, put in its simplest form, you have asignificant number of votes that you can place, the exact numberdepends on which country you are residing in. You can place your voteseven to support candidates not from your particular sector.

The important thing is that you give the official STOP REMOTESUPERVISION candidates described below your undivided backing. It isonly if all (or the vast majority) of them are elected, alongside two goodhospital candidates will their ability to address Remote Supervision beguaranteed.

If you want to deal with the threat of Remote Supervision, thenwe ask that you use your votes accordingly.

This feature has been written by the PDA and not by any of the election candidates.

www.the-pda.org insight winter 2009 |3

Rarely has there been a time when the pharmacy agendahas moved so quickly, whether you are working incommunity, hospital or primary care, it is unlikelythat you are unaffected by the consequences ofsome of the changes that have taken place thislast 12 months. The 2010 annual conferencewill explore the most fundamental of theselooking at those that are good, those that arebad and frankly, those that are plainly ugly.Matters that are of great concern topharmacists include the ResponsiblePharmacist regulations and the impact ofthe Elizabeth Lee prosecution.Worst of all,the threat of Remote Supervision is loomingever closer; find out how the PDA is tacklingthis issue and what role you will need to playgoing forward if you want to extinguish thisthreat to pharmacy.In a strategic sense, there has been goodprogress made on some important PDAinitiatives – such as the individual pharmacistcontract.

Every year we study carefully the feedbackthat we receive from members at the end ofour annual conference. One matter thatcomes up regularly is that we need to findmore time to devote to matters of greatimportance. We have listened! As aconsequence, our forthcoming annualconference, will, for the first time be heldover two days. On Saturday 27th andSunday 28th February 2010. This willprovide delegates with flexibility and achoice of which of the 2 days (or both) toattend, increasing the amount of timethat can be dedicated to singularlyimportant issues.

As a further novel concept, if enoughinterest is shown, we will organise an eveningsocial for those staying the night!

We urge all PDA members to consider attending this, themost important event in the PDA’s calendar.

The Good,the Badand the Ugly

The Good,the Badand the Ugly

The PDA Annual Conference Birmingham – February 27th & 28th 2010

The Good, the Badand the Ugly!

Delegates can choose to attend on one or two days of this event.Hotel and evening entertainment option available.

Saturday 27th and Sunday 28th February 2010International Convention Centre – Birmingham

To see conference programme andbook on-line www.the-pda.org

Wrestling with issues that affectthe lives of pharmacists.

The PDA Annual Conference

• Responsible Pharmacist – can theemployers’ intransigence win?

• Remote Supervision – preparing to stopthis threat.

• The Elizabeth Lee prosecution – will thelawmakers concede they got it wrong?

• The individual Pharmacist Contract – howpharmacists take back what is rightfully theirs.

| insight winter 20094 www.the-pda.org

NewsThe PDA has become aware of a numberof serious complaints againstpharmacists who are accused ofinappropriate behaviour or comments,and in some cases sexual assault.Although relatively small in number,complaints in this area are growing and havethe potential to unfairly ruin a pharmacist’scareer when unfounded. Quite rightly suchcomplaints are treated seriously and theSociety can act quickly using its legal powersto suspend or restrict a pharmacist’s ability towork if it receives such a complaint. What ismore concerning is that suspension orrestrictions can be imposed even when thebasis for the allegation is uncorroboratedevidence from a single individual.

The rise in complaints appears to be linked tothe greater involvement of pharmacists inproviding patient services, such as MUR’s orsupervised consumption of methadone in

private consultation areas. There are anumber of ways that pharmacists can protectthemselves from false allegations wheninvolved in services that are conducted inprivate and/or involve physical contact witha patient.

• Be familiar with the Professional Standardsand Guidance for Patient Consent issuedby the Society; this should be read inconjunction with its Guidance onMaintaining Clear Sexual Boundariesavailable at www.rpsgb.org

• The PSNC suggests every communitypharmacy that has procedures which mayinvolve physical contact with patients, orconsultations carried out in confidentialconsultation areas should consider havinga chaperone policy in place for the benefitof both patients and staff; details onwww.psnc.org.uk

In pharmacy, the experience so far is forfemale patients to complain against malepharmacists; this reflects the trend for similarcomplaints in the medical and nursingprofessions, where male against male andmale against female complaints are veryuncommon.

PDA AdviceAs pharmacists become more involved inservices that require physical contact and takeplace in private, they should reflect on theirown preparedness to undertake such roles.Pharmacists who work with certain patientgroups may be particularly vulnerable tounwarranted complaints and should discussthe merits of a chaperone policy with theiremployer, in addition to close observance ofthe above guidance.

Career threatening complaints

PDA executives recently met with Bob Nicholsthe Chairman designate of the newly proposedGeneral Pharmacy Council (GPhC), theprofessional regulator which is planned to takeover the role from the RPSGB in April 2010.

Mark Koziol, Chairman and John Murphy,Director represented the PDA and were joined

by the newly appointed Chief Executive Officerof the GPhC, Duncan Rudkin who takes up hispost in January.

Protocol deems that we cannot as yet divulgethe content of the meeting but suffice to saythat Mr Nichols is keen to listen to the PDA’sforthright views on the proposed GPhC

Standards during the current consultationprocess. “We made our view known thatstandards should be aspirational and not adevice for punishment and stifling innovativepractice”, Mark Koziol said. “And Mr Nicholsgave us both the impression that he wouldbe taking our concerns seriously.”

The PDA Union has launched the ‘LocumBooklet’ which contains information andadvice to help Locums in an emergencywhen faced with difficult contractual,health and safety and professionalsituations.

The Booklet covers issues such as, contractualrights and what to do if they are breached,what processes you should follow if fees arenot paid or there is a dispute about rates ortravel expenses.

“Locums can often prejudice their positionor prolong the dispute unnecessarily byomitting to take certain actionsimmediately,” said Orla Sheils, the legaladvisor who managed the project.“so we wanted to give them some pointerswhich will clarify their position and probablymake the handling of the dispute a lotsmoother further down the line”

Information on Health andSafety legislation and how itapplies to Locums is also a bigfeature of the Booklet.

“There are certain obligationson Employers which impacton Locums”, continued Orla,“and Locums should beaware of their [employers’]statutory duty and what todo should they findthemselves in an impossiblesituation”

The final part of thepublication deals mainly with professionalconsiderations which include what to doabout under-staffing, dispensing errors or ifthe Locum is embroiled in an investigation bythe Regulator or Primary Care Organisation.

Commenting on the booklet,John Murphy, the GeneralSecretary of the PDA Unionsaid “The booklet is based onthe experiences of the legaladvisors in the PDA and I amdelighted with the endproduct which is a credit totheir hard work and thesupport and input of theLocum Membership Group ofthe PDA Union. “The bookletis not the definitive self-helpguide to every problem thatLocums will face, but we have

given enough information to help ourmembers become more self-sufficient withimmediate access to a comprehensivereference source - at least until they canaccess more specific advice through the PDA.”

Locum risk management publication launched by PDA

PDA meets Chairman Designate of GPhC

www.the-pda.org insight winter 2009 |5

www.the-pda.org| insight winter 20096

Does theThe PDA prides itself on the quality of adviceprovided to members in defending theirposition when faced with a medical negligenceclaim, an RPSGB investigation, an employmentor locum dispute and/or a criminal prosecution.

The quality of the counsel we give to our members needs to be ofa very high standard because we are not only giving advice; moreoften than not we are assessing the risk to the member and sowingthe seeds of a strategy for their defence. It is essential if we are towork as a defence association as opposed to the ‘provider ofgeneric advice’, which may not fit the purpose, that we get asmuch relevant information as possible as early as possible and thismeans all the documentation and evidence that is available.

Any advice we give early on is with the intention of protecting themember’s position, not just in the immediacy, but in the medium andlong term of the dispute or claim. It is frustrating when a memberdecides not to take our advice or if they fail to give us all theinformation that we require. We cannot give the correct advice if weare only given half the story or damaging information that turns out tobe pivotal to a case is then disclosed by the other side.

Every member has the right to seek legal and professional advice fromwherever they choose but they must appreciate that if they decidethat advice from another source is preferable to that of the PDA’s andfollow it, that if things go wrong after that point then it is usuallydifficult for the PDA to pick up the thread of someone else’s wrongfuladvice as the damage is most likely already done.

Reporting of negligent practiceThere are occasions when our members decide not to inform us abouta dispensing error or other complaint because they believe it to beunimportant. If the error comes to light some time later in the form ofa claim passed on to us by the employer’s insurer, the NPA, becausethey hold the pharmacist liable, and the question is asked of ourmember why they had not reported the incident to us, typical answersinclude “I thought that the employer was taking care of it” or “itdidn’t seem to be going anywhere”.

This can often prove to be an unfortunate misconception and causeserious complications if matters escalate to a compensation claim, aprofessional complaint or both. Early intervention by the PDA allows usto construct a strategy that is beneficial to our member’s defencewhen dealing with significant errors or complaints. Failure to notify thePDA of dispensing incidents or complaints that are likely to lead to aclaim may also cause problems with the insurance underwriters.

We appreciate that sometimes there can be a complaint made which isunforeseen or unexpected, but in our experience if pharmacists applythe golden rules, they are unlikely to run into any nasty surprises in thevast majority of cases.

As a generalrule of thumb, it is importantthat you inform us if any of the following;

1. An error has occurred or wrong advice has beengiven and as a result the patient has used thewrong medication.

2. Any error with which you are remotely connectedthat may be linked to the death of a patient.

3. An error or wrong advice has been given that hasresulted in harm being caused to the patientand/or they have sought medical attention.

4. An error that may not have caused harm but issufficiently serious to be worthy of a fullinvestigation (for example methotrexate 10mg tdsdispensed to a patient instead of metclopamide,incorrect medication given to pregnant women orchildren).

5. The patient or the patient’s representativeinsinuates that they intend to take the matterfurther; e.g. “I will report you”, “You will not hearthe last of this”, “Can I have your name and thetelephone number of your Head Office?”

6. An error is a repeated error (irrespective ofwhether you made the earlier error or not) or thesame patient has been subjected to an incidentbefore.

7. An incident has involved other health careprofessionals (e.g. the GP, nurse, hospital, daycentres/case workers) or other authorities such asthe PCOs, the Police, NCAS or the RPSGB.

8. The incident involves Controlled Drugs.

9. You have been asked to provide your insurancedetails.

10.You have been asked by the employer or PCO toprovide a written report (other than an error logentry) of the incident or a letter of apology to apatient as a result of an error or incident.

“PDA membership is a pricelessasset to have as part of a

pharmacist’s protective armour.”

Failing to disclosean incidentOn application or renewal, potential membersor current members are required to make adeclaration about any incident, triggeringevent or health condition which if it hadoccurred during the policy period would havequalified for a claim being made. As is normalinsurance protocol, if the applicant was notinsured when that triggering event took placeor health condition was diagnosed, then thepolicy will not provide cover for any claim forthat incident or related to that condition. Anuninsured driver would not, for instance, crashhis car then take out an insurance policy andask his insurer to provide cover for that claim.

If you have an ongoing dispute which involvesyou in a claim for medical negligence,criminal or regulatory proceedings, anemployment dispute, or have beendiagnosed with a medical condition that mayaffect your fitness to practice then theunderwriter must be told at the applicationstage if you are a new member.

Current members need to have told the PDAof their incidents during the policy year asand when they occur, but they will also needto declare ‘new’ incidents which have not

been officially reported on the originalapplication form at the point of renewal.There are implications if the declaration isincomplete. In one case a member had beencharged with a similar criminal offence on atleast two occasions, one of which occurredwhilst he was not insured and neither ofwhich were declared on application orrenewal. When the person was subsequentlysummoned to the Statutory Committee as aresult of the Police reporting the secondoffence to the Society, he encounteredproblems with underwriting.

The declarations on the application formswere incorrect and this caused an insurance

contract problem. The lack of disclosureundermined the efforts of the PDA to defendthe individual. Despite this, the PDA allocatedsome discretionary funding to the defence ofthe member but as such processes requireheavy legal representation costs, we did nothave the funds to pay for the full costs of thehearing.

It is important that all declarations are madewith due diligence.

If we know aboutthem thenwe will alwayssupport ourmemberthrough theunderwritingprocess.It’s worthnotingthat thenumberof timesthat

pharmacists have excess premiums levied onthem as a result of being involved in previousincidents is extremely rare, and it is only inexceptional cases where special conditionswill be imposed.

Breaking coverProfessional Indemnity insurance is a pricelessasset to have as part of a pharmacist’sprotective armour. It is important thatcontinuity of medical negligence cover ismaintained during your professional lifetimeand if you change your cover provider youshould check that continuity is assured. Thereasons for this are that the incidents areoften of a nature, the implications of which donot come to light until sometime after theoffending act takes place. If you are on acareer break, maternity leave or in retirement,not only do we maintain your cover free ofcharge but we also refund you for the balanceof the policy premium that you will not use ifyour status changes mid-policy year; all youneed to do to take advantage of this is to tellus what you are doing and when!

We exist to protect our members from theworst happening, to do so we need all theinformation so as we are not working with onehand tied behind our back or compromisingthe defence of the people we most wantto protect.

Richard Nixon, the President of the UnitedStates of America, who resigned hisposition rather than risk impeachment,said years later that one of his regrets(and he wasn’t big on regrets) was that “Ididn’t tell my brief everything – warts-an-all”; he realised that what the lawyersdon’t know they can’t defend you against!

need to know?

“We exist to protect our members from the worsthappening, to do so we need all the informationso as we are not working with one hand tiedbehind our back or compromising the defence

of the people we most want to protect.”

Lacking the relevant information is like workingwith one hand tied behind your back.

www.the-pda.org insight winter 2009 |7

www.the-pda.org8

GIVE US A BREAK!

In calling for a delay to the RP regulations, the PDA sought aperiod of time before the regulations ‘went live’ to try and‘fix’ some of the unworkable proposals contained in theregulations. In the end, this call for a delay was notsupported by the RPSGB and consequently it was notgranted by the government.

However, the PDA continues to develop solutions and seeksto get them accepted by the wider pharmacy community;furthermore, we are daily supporting pharmacists who areattempting to react appropriately to the changes that theRP regulations bring to their practice. This special featuredetails some of the reactive issues and also describes someof the more proactive work in progress.

The lobbying intensifiesMany meetings have already been held with the various relevantbodies at a frequency and intensity that we have not previouslyexperienced. As an example, PDA has sought meetings with theCompany Chemists Association Superintendents for more thanthree years with little result, during the last two months however,two meetings have already been held and a third is planned forearly in the New Year. It is now clear that the RP regulations havecaused problems not only for employees and locums but also foremployers. Most employer organisations are now scratching theirheads and wandering how on earth so much bureaurocracy andregulatory burden could have possibly been agreed to by theprofession. We are encouraged by the number of matters that wepreviously expressed concerns over, but which were ignored, arenow, albeit belatedly, securing support. Furthermore, there is areal concerted effort to progress some of the solutions proposedby the PDA and this has led to joint workings with relevantorganisations.

But it is not just the CCA with whom we have met. We have alsohad meetings with the Department of Health to pursue ourconcerns over the conflict between RP regulations and rest breaks;with the RPSGB to discuss our concerns over pharmacists who arebeing asked to sign on from 8.00am when arriving at work at9.00am; with the Independent Pharmacy Federation to discuss arange of concerns and also to propose solutions to the challengesposed by the RP regulations. We are also due to meet with theNPA in the near future.

Responsible PharmacistPDA continues to work to resolve RP problems

On 22nd of May 2006, the governmentsspokesman Lord Warner explained toParliament that; “With safe systems ofwork and competent trained staff, the(RP) provisions should allow thepharmacy to continue to operate whilethe pharmacist takes a lunch break.Otherwise, if patients visit a pharmacywhile the pharmacist is taking a restbreak then they will not be able to obtainany medicines until the pharmacistreturns – not even GSL’s.”

It is clear that it was the governmentsintention to use the two hour absence

provision to allow RP’s to take their breakswhilst they are signed on so as to allow thepharmacy to continue to provide a basicservice, to include the sales of GSL medicines.This was an important cornerstone of thegovernments RP programme. Unfortunately,the Department of Health in devising the RPconcept did not take into account the Healthand Safety and employment legislation andits impact upon their RP proposals.

This article explores how the concept of theRP conflicts with the employment and Healthand Safety legislation in so far as they relateto statutory rest breaks and demonstrates

that the two hour absence provision cannotbe used to allow an RP to take a statutory restbreak.

| insight winter 2009 www.the-pda.org

Prevailing conditions forabsenceThe RP is allowed to take up to two hours as arecorded period of absence during any 24hour period. During this period, a number ofbasic activities are allowed to continue tolawfully operate in the pharmacy to includethe sale of GSL medicines. For an RP to beable to utilise any part of the two hourabsence provision, a number of conditionsneed to be observed by the RP;

• The RP must remain signed on andtherefore still be taking over-archingresponsibility for ensuring the safe andeffective running of the pharmacy inhis/her absence. The RP would be heldresponsible and liable for anything thatoccurred during the absence.

• The RP must be able to return withreasonable promptness if necessary.

• The RP must display a sign thatindicates that they are the RP.

• The RP must remain contactable – or ifnot able to be contactable, then he/shewill need to make arrangements foranother pharmacist to be contactableinstead.

The working timeregulationsThe Working Time Regulations apply whetherthe individual is employed or is a worker andthey place a statutory responsibility on theemployer of providing a minimum 20 minuterest break per six hour continuous workingperiod. It is not extended to a self-employed locum who genuinely pursuesa business activity on their own account.

According to the regulations, this must be acomplete, physical and mental break awayfrom the work station. It is also a periodduring which the worker must not beinterrupted. This period must also allow aworker to be able to pursue any leisureactivities that they wish so as to mitigate theeffects of the work, such as going for a walk,or even going to sleep. This means that noconditions should be imposed upon theworker which seek to ensure that the workerstays on the premises and stays available (e.g.requiring them to have lunch in theconsultation room) just in case that they needto be momentarily brought back into service.

This means that for the working timeregulations to be observed in so far as the RPis concerned, then no conditions should beimposed upon this break period. The RP mustnot be able to be contactable during thebreak, nor must he/she be required to returnwith reasonable promptness.

In addition to this, the employer needs toensure that the rest period is clearly defined.In other words, an arrangement where theemployer says, try and catch a breakwhenever you can, or try and fit in a series ofshorter breaks to suit the business is notallowed under the regulations; the rest breakneeds to be pre-determined and protected.Because these regulations place theresponsibility of ensuring that such breaks aretaken upon the employer, any employer thatdoes not put appropriate arrangements inplace to support these principles iscommitting an offence under the regulations.Any employer who claims that his workersprefer not to observe the working timerequirements and allows them to workwithout a break is also committing anoffence.

The test case precedentsEmployment and Health and Safety legislationprovides many specific test cases that indicatehow some of the prevailing conditionsdescribed would impact upon the rest breakof a pharmacist. The ones that are relevant tothe RP issue primarily deal with the issue ofcontactability and ‘on call’. They also deal withanother important concept; that of over-arching responsibility. Although the PDA hasstudied many of these cases and has found aconsiderable number that support the PDA’sposition, in this feature, because of spaceconstraints we have only referred to a smallnumber of these precedents.

On call arrangements –the requirement to remaincontactable and to returnwith reasonablepromptness.1. The European Court of Justice in SIMAPv Conselleria de Sanidad y Consumo de laGeneralidad Valenciana dealt with a doctorthat was on call. It concluded that the wholeperiod when the doctor was on callconstituted working time. This case dealt witha doctor who was providing on call dutiesduring which time he was required to remainon hospital premises. His employers arguedthat although he might be ‘on call’, therewere often lengthy periods of time when hewas not required and was not actually beingcalled. They argued that although he wasasked to remain on hospital premises, he wasotherwise able to do whatever he wanted,they also argued that because they hadprovided a bed for him and allowed him tosleep during the often lengthy quiet periodsduring the night that his entire on call perioddid not constitute working time and thereforehe did not deserve to be paid for this period.

The European Court of Justice confirmedhowever, that because he was required toremain on the premises, then irrespective ofwhether he was actually being called or not,or even whether he was awake or asleep, hewas not able to pursue leisure activities. Theyconcluded that his entire ‘on call’ period wasindeed working time and that he was entitledto full payment.

“This means that no conditions shouldbe imposed upon the worker which seekto ensure that the worker stays on the

premises and stays available.”

www.the-pda.org insight winter 2009 |9

Impact upon the RPConsequently, where an RP is told that a breakmay be taken, but that the RP is required tostay on the premises then this does notconstitute a break, it is ‘working time’ andmeans that the employer may havecommitted an offence under the WorkingTime Regulations, by not providing therequired minimum 20 minutes statutory restbreak per six hours of working time.

2. The Hughes v Graylins Case was heardby three judges in a UK EmploymentAppeals Tribunal and it dealt with anemployee of a residential home who workedin the residential home for 8 hours per week.However, because she rented accommodationfrom her employer which happened to be onthe grounds of the residential home, she wastold that because of her proximity she wouldbe expected to assist in emergency situationsin her own time in the event that staff in theresidential home were unable to cope. To dothis, she would have had to return to theresidential home with reasonable promptness.In reality, the staff were able to deal with mostof the emergencies without the need to callher however, she was required to attend onabout two occasions per month. The issuewas that the employee claimed that her entire‘on call’ time should be working time; theemployer denied this claiming that she washardly ever called.

The EAT concluded that her entire time whereshe could have been called in to assist wasindeed working time, irrespective of whethershe was called or not. They went further andstated that because of this, far from heremployment being merely 8 hours per week,her actual working time was in fact 96 hoursper week and that this was an amount thatexceeded the total number of permittedhours in a week. Additionally, they stated thatthe worker was entitled to payment for theadditional hours of the ‘working time’.

Impact upon the RPConsequently, this shows that if the RP issigned on and contactable, then whether theRP is contacted or not this represents ‘workingtime’, for which the worker is entitled topayment. It further means that any periodwhere the RP is signed on, but absent andcontactable cannot constitute a rest break.This also conflicts significantly with therequirements being placed on pharmacists bysome of the largest pharmacy multiples wherepharmacists are being told that they shouldtake their lunch, remain signed on and not bepaid for this added responsibility on thegrounds that they are unlikely to be called.

The issue of Responsibility3. In the case of Roberts v North WalesPolice, a Police Sergeant who performed thefunction and duty of a custody officer waseffectively the officer responsible for the safecustody of prisoners. Although other policeofficers where available in the police station,none of them had the appropriate rank orexperience and thereby did not have thesame level of responsibility.

When the time came for him to take a break,no other custody officer was available.Consequently, it was decided that the custodyofficer could take a break in the custody suite,other officers would deal with the routinecustody issues in his absence but that hewould continue to be the named custodyofficer and therefore continue to take theresponsibility for that role. The issue waswhether time spent in this way couldconstitute an ‘uninterrupted period’ of atleast 20 minutes when, in view of the absenceof any appropriate cover, he could have beencalled upon at any moment to resume hisduties.

An employment tribunal found that this‘alleged’ rest break period was not in fact arest break at all but constituted working time.For although others were involved in the rolein his absence, he still continued to be theresponsible ‘named’ individual. The key to thisfinding was that unless another custodyofficer could substitute for the originalcustody officer, then the original custodyofficer’s over-arching responsibility for the safecustody of prisoners continued – it made nodifference whether he was in the custodysuite or elsewhere away from the policestation. This meant that even though a localarrangement had been made for him to takea rest break, with other police officers

available and contactable this was in fact nota rest break at all, but working time.

Impact upon the RPConsequently this shows that an RP who isasked to continue to carry the responsibility byremaining signed on during the lunch hour, toallow the pharmacy to operate lawfully, is notin fact enjoying a rest break at all, his lunchhour is still working time. In this situation theRP would be entitled to be paid for this time.It also shows that even if another pharmacistis given the role of being contactable, whilethe signed on RP was at lunch, then it makesno difference since the original RP continuesto carry the responsibility. The only way thatthe RP could enjoy a statutory rest break is ifhe/she signs off.

So what next?Considering that enabling the sale of GSLmedicines while the pharmacist is at lunchwas one of the stated objectives given whendrafting the RP regulations, it would appearthat it has all gone wrong. Far from enablingthis, the effect of the employmentregulations, coupled with general shortages ofpharmacists means that, as written, the RPregulations will have the unintended effect ofactually closing the pharmacy down duringthe statutory break of the pharmacist.Alternatively, it will result in large numbers ofpharmacists especially in the communitysector being denied proper statutory restbreaks by pharmacy operators.

The PDA called for a delay to the RPregulations, primarily so that unworkableproblem issues like this could be resolved priorto commencement. Judging by the feedbackand evidence that the PDA is now receiving,many employers are now operating unlawfullyin so far as the working time regulations areconcerned. There is also a significantresistance by some employers to review thecontracts and terms and conditions ofemployment of their employees to reflectthese new realities.

Some employers are using coercive tactics totry and persuade their RP’s to remain signedon during their rest breaks.

The current regulations have producedan intractable operational problem fromwhich there is no easy way out for eitherpharmacists or employers. The PDA isurging the government to urgently revisitand amend the regulations.

“The RP who is asked to continue to carry theresponsibility by remaining signed on during thelunch hour, is not enjoying a rest break at all.”

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According to the PDA’s employment specialists and withreference to good employment and Health and Safety practice,the changes brought about by the RP arrangements havecreated an obvious need to review the contract and termsbetween pharmacists and their employers. The reasons will bedescribed in this feature.

As a consequence, immediately prior to the implementation of theRP regulations on October 1st, we urged pharmacists to put theiremployers on notice and enter into formal dialogue with them so asto ensure that their contractual arrangements properly reflected thenew realities. We simultaneously wrote to the HR directors of all of thelargest pharmacist employers in the UK, indicating that they could bereceiving requests from their pharmacists to review their contractsand terms.

As a result of this, already some pharmacists and their employers haveentered into dialogue. Other employers however have ratherdisingenuously in our view developed a defensive mantra which statesthat “The RP changes do not represent anything that would requirea change in the employment relationship.”

In addition to this, the employers trade association – the NPA haspublicly stated that they believe there is no change.

It is obvious that some employers, especially the largest multiples, fearthat if many of their workers take them on over these changes thenthis could lead to an increased operational cost. It is clear that theywill not have an appetite to hold such a discussion. However, webelieve that the “there is no change” position lacks credibility andonce it is challenged in an employment tribunal, it will be shown to beincorrect. We provide the specific areas that pharmacists will need todiscuss with their employers if they are to deal with any reviewcomprehensively. Furthermore, we invite any members who have hadan unsatisfactory response from their employers and who may nowwish to pursue a formal grievance, to make contact with us as we arekeen to establish some good test case precedents in this regard.

THE ISSUES NEEDINGCONTRACTUAL ATTENTION1. Rest BreaksA detailed article on the legalities of rest breaks is enclosed (P8).Members reading that feature will come to understand why there is ahigh likelihood that their contractual rest break arrangements maywell need some attention. It is not proper for contracts or terms andconditions to simply state “take rest breaks whenever you can” oralternatively that they should remain silent on the issue of rest breaks.

2. Periods of absenceThe RP regulations permit a two hour period of absence and alreadyfrom our early experiences, this two hour absence is causing tensions.The main cause of these tensions is that the two hour absence wasdesigned as a professional facility to be used at the discretion of RP’sand only if they felt that when absent, they could still secure the safeand effective running of the pharmacy. They would need to remainsigned on and be happy to take personal responsibility for theoperations of that pharmacy in the event that something went wrongduring their period of absence.

They would need to sign the RP register recording the period ofabsence and it is good practice to also record the reason for absence.During the absence period, the RP would have to display their namedRP sign, they would have to be contactable (and if not, then anotherpharmacist would have to be) and they would need to be able toreturn with reasonable promptness. In other words, the decision to beabsent would be dependent upon the RP’s professional discretion asto whether it would be proper and safe to do so and if so, then anumber of additional qualifying conditions would attach.

However, some employers are treating this two hour period ofabsence as some kind of a given cost saving and are acting in a waywhich virtually rosters in the absence when it suits the business. Thereappears to be no respect paid to the fact that the decision to beabsent is for the RP to make, nor is any interest shown in whether ornot the RP in being absent can satisfy the absence legal requirementsdescribed above. In the worst of these situations, pharmacists areactually being told that when they come to work at 9.00am, theyshould actually sign on from 8.00am retrospectively to cover theactivities which have already occurred in the pharmacy before thearrival of the RP. This advice is not only problematic from anemployment contract point of view, but is also illegal – attractingmore problems for the employer / employee relationship.

In other instances, pharmacists are told that they should remainsigned on and use the two hour absence when they take a rest break.This is also wrong (see rest break feature p8).

To add insult to injury, some employers have explained to pharmaciststhat when they are absent, they will not be paid as they are unlikely tobe disturbed. No mention is being made of the fact that whethercontacted or not, the only reason that the pharmacy is permitted tocontinue operating lawfully is because there is an RP signed on.Furthermore, contactable or not, should something untoward occurduring the period when the RP is absent and signed on, it will be theRP who will be held responsible.

ARE EMPLOYERS BURYING THEIR HEADS INTHE SAND OVER RP CONTRACT REVIEW?

www.the-pda.org insight winter 2009 |11

The idea that they remain signed on to allow their employers’pharmacy to operate lawfully and extend their business hours, but betold that they should receive no pay for this added responsibility defieslogic. Consequently, many pharmacists have found these approachesinsulting and unfair.

For these reasons, the agreements between workers and employers inrelation to periods of absence must be set out clearly in revisedcontracts and any terms attaching.

3. Authority and who is in chargeof the pharmacyIn the Pharmaceutical Industry manufacturers are required by theregulatory authorities to employ Qualified Persons (QP). The role ofthe QP is to ensure that any batches of medicines that are releasedfrom the factory have undergone the strictest of quality controlmeasures. In other words, they take responsibility for checking thesafety of medicines prior to release. Although the QP is often anemployee, they carry a very significant level of personal responsibility.If a QP believes that a batch of medicines has not met the requiredstandard, then that batch of medicines cannot be released,irrespective of the fact that the employer may have investedsignificant sums in bringing that batch through the entiremanufacturing process.

This factor, protected by statute, produces a shift in theemployer/employee relationship, almost an oasis of authority, asdespite the fact that there is in existence a master servant relationship,in the case of the QP, no amount of pressure from the employer isallowed to require a QP to change his/her mind. This arrangement is inplace to protect the public interest. The thinking behind the RParrangements is very similar; however, whilst all the pharmaceuticalmanufacturers understand the regulatory, statutory and professionalrelationship between them and their QP (and this is enshrined in theircontracts and terms) some employers of pharmacists are currentlyreluctant to enshrine such a position in their written terms.

Consequently, many RP’s do not currently have proper writtenemployment terms which set out clearly the new statutoryresponsibility. As far as their written terms are concerned, they do notyet enjoy the new “oasis of authority” that the new statute entitlesthem to. This means that they may have difficulties when (often nonpharmacist) line managers arrive in their pharmacy or pharmacydepartment and seek unacceptable arrangements. Additionally, whenan RP requires that the staffing levels or workload issues are adjustedto ensure the safe and effective running of the pharmacy, there maybe problems with line management questioning the authority for such

a request. For this reason, the authority of the RP must be set outclearly in the reviewed contracts and terms attaching as they will offera written protection of authority and will act as a clear explanatorydocument for any line manager.

4. Risk assessmentsUnder the new RP regulations, the RP will be held statutorily liable forensuring the suitability of any pharmacy procedure. It is the RP who isnow required by statute to review the written procedures. This meansthat the RP must be able to undertake risk assessments whencompleting this task. This is an added statutory responsibility. UnderHealth and Safety legislation, if a worker is required to undertake a riskassessment, then a requirement to provide the requisite training toenable the worker to do this is placed upon the employer. A contractwill always set out in written form the expectations placed upon theemployee by the employer and also what an employee can expectfrom an employer. The contract will therefore need to be reviewed toensure that both what is required of the employee (in relation to riskassessment) and also what will be provided by the employer (in termsof the training provision) are set out in written form.

5. Hospital pharmacySince the beginning of 2009, many hospital pharmacies haveregistered themselves as pharmacies with the RPSGB and thereforenow fall under the scope of the newly amended 1968 Medicines Act.Consequently, in these instances, hospital pharmacies and thepharmacists that they employ also fall under the requirements of notonly the RP regulations but also various wider 1968 Medicines Actrequirements. This brings with it a raft of new responsibilities and alsoa regulatory burden that previously did not exist. As a minimum,hospital pharmacists should seek to ensure that their terms andconditions properly reflect the new legal and regulatory realities.

6. Vicarious liabilityIt has long been understood in the hospital sector that if anyprotection (however superficial) was to be afforded to hospitalpharmacists by their employers in the event of an untoward incident,then the activity that they were undertaking would need to be as avery minimum clearly described in their job specifications.

However, early signs are that many pharmacists are currently actingas the Responsible Pharmacist without a contractual requirement todo so. In such instances, hospital pharmacists are placing themselvesinto unnecessary risk, and should urgently ensure that their writtenterms are amended.

7. Standard Operating ProceduresThe RP regulations place the responsibility for procedures in thepharmacy upon the shoulders of the RP. However, it is a commonpractice in pharmacy that many of the SOP’s are developed centrallyby employers and then disseminated in a top down arrangement tolocal pharmacy level. This in some ways can easily fit into the new RPregulations but only in the event that the RP is actually satisfied withthe centrally produced SOP’s. However, if the RP is dissatisfied with theHead Office SOP, then the RP is legally entitled to change or amendsuch a written procedure. We are learning that this position in itself isalready causing tension between RPs and some employers.

“There are important principles hor swept under the carpet. From O

statutory responsibilty, is expothis added risk, the RP should be

www.the-pda.org| insight winter 200912

• Some employers are placing conditions upon the RP’s ability tomake changes, such as requiring the RP to first discuss any proposedchanges with their (sometimes non pharmacist) line manager.Should their line manager not be satisfied with the nature of theproposed change, then the RP may discuss this further with thesuperintendent pharmacist.

• After the Elizabeth Lee case, some employers have produced SOPsto cover almost every single possible eventuality in theirpharmacies. However, some RPs believe these SOPs areundeliverable. What they say should happen can not occurconsistently in a working pharmacy. In reality, it means that RPs canfind themselves working outside of these SOPs routinely.

In a recent magistrate’s court hearing, a pharmacist and atechnician were prosecuted for making a dispensing error. Duringthe case, the court initially considered who should be heldto account for what had happened. In answer to this, the largemultiple employer’s legal representative explained to the court thatsince their client (the employer) had delivered the SOP for thepharmacy, but that the pharmacist and the technician hadobviously not followed the SOP, then the employer should not beheld liable for what had happened.

The court accepted this argument; consequently, in the event thatan SOP is in place, then this puts the pharmacist and any staffmember in a near impossible situation if the SOP cannot befollowed in every day practice.

• The RP regulations require that SOPs are reviewed either after acritical incident has occurred in the pharmacy, or as a minimum,every two years. Will this mean that in the vast majority ofpharmacies it will be the RP who happens to be working in thepharmacy on October 1st 2011 (the 2 year anniversary) who will berequired to review the SOPs for that pharmacy?

8. RemunerationWhilst the issue of potential dilution of control will be of concern,particularly for the largest employers, there is no doubt that anychange in remuneration will be a much bigger concern. There is animportant principle here that should not be swept under the carpet. Asuperintendent pharmacist carries greater responsibility than anemployee or locum pharmacist, consequently, the superintendent hasalways enjoyed greater remuneration. From October 1st, a ResponsiblePharmacist carries greater statutory responsibility, is exposed togreater liability than previously when simply in ‘personal control’ andfor this added risk and responsibility, the RP should be awarded greaterremuneration.

9. Locum pharmacistsMany of the points described above also apply to self employed locumpharmacists, especially because locums will fall under the scope of thesame professional regulatory, health and safety and healthcare law.Locums will not have contracts of employment however, theircontractual arrangements should be covered by a contract forservices. An updated version of a locum contract for services can befound in the RP tools section of the PDA website.

Amending and renegotiating yourcontracts and Terms and Conditions ofEmployment.The list of issues described is not exhaustive and are intendedto assist pharmacists and their employers in undertaking aninformed discussion to enable them to review their terms.Should pharmacists learn that their employers are unpreparedto hold such a discussion in good faith, then they may pursue agrievance procedure. PDA members may contact the PDA forsupport.

Work in progressTrying to resolve the RP

operational problemsMany RP issues, particularly around rest breaksand contractuals are currently the subject ofeither meaningful and constructive discussionsbetween employers and their pharmacists or arenow turning into formal grievance procedures.The PDA is currently supporting manypharmacists through these processes.

Additionally, the PDA is also working proactively totry and deliver some possible solutions which maymake the RP regulations more workable. Some ofthis work is being done independently, and some isactually being done in collaboration with theCompany Chemists Association, as they too havereason to see this mess resolved. Some of theproactive work includes the development of;

• A slim-line universal SOP

The idea is that locum pharmacists may takewith them from pharmacy to pharmacy a slim-lineuniversal SOP that could be used in any initialacclimatisation period while they get used to andlearn about the more substantial regular SOPs forthat pharmacy. Therefore, they will not beexpected to sign off the normal pharmacy SOP inthe event that there has been no real possibility ofbeing able to read, digest and agree to it prior tosigning on at 9.00am.

• A Remote RP Sign on Sign off facilityThis is developing into a joint project between theemployers, the PDA and also the new regulator.We have a facility that is currently being testedand opening discussions have already been heldwith both employer representatives and officialsof the new GpHC.

• Rest BreaksWe believe that our lobbying work around restbreaks is about to produce a result. We arepressing the RPSGB and the DoH to providesome guidance on this matter urgently.

Watch this space for more developments!

here that should not be forgottenOctober 1st an RP carries greaterosed to greater liability and fore awarded greater remuneration.”

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www.the-pda.org| insight winter 200914

Every local Primary Care Organisation(PCO) will have plans in place to dealwith the threat of Swine Flu andalthough these will be broadly the sameacross the UK they may use pharmacists’expertise in different ways,such as:

• In their normal daily practicethrough patient contact

• Giving advice through official mediasuch as help lines or web sites

• Being an integral part of adistribution strategy with directaccess to patients who presentthemselves or send a representativefor relevant medication

• The pharmacist’s role may be only todistribute the medication andcounsel the patient or theirrepresentative/carer

• The pharmacist may be involved in amore clinical role and makingdecisions on whether the patientshould be treated.

Some members have expressed concernabout the level of detail in the protocolsissued by their PCO and we do recognise thatthese are not as prescriptive as are PGDs,however the PDA’s position is that pharmacistsshould be involved in this initiative andtherefore it must seek to help members byextending their cover to provide peace ofmind. There are certain aspects of theprotocols that may not be acceptable innormal circumstances but in the interest ofthe Public Health agenda we accept that inexceptional circumstances the benefits ofbeing more pragmatic in practise may welloutweigh the risks as it is important for asmany people as possible to have access totreatment.

Pharmacists will still need to be aware of theirown competency limitations and operatewithin them; there may come a time when amember will have to make a professionaljudgement and take action in the patient’sbest interests that would fall outside of theirnormal duties. In such circumstances,pharmacists are advised to ensure that theycan justify any such decision and also make awritten record.

Members can therefore rest assured thatduring these emergency measures they willhave the full support of the PDA to coverthem in whatever capacity they are asked tocontribute to these emergency proceduresunder their current policy; cover is unaffectedwhether or not the activity is operated out ofregistered pharmacy. This relaxation to theconditions of PDA cover extends to thisparticular national emergency initiative only;and will not be applicable to any othercircumstances.

Swine Flu Vaccination

STOP PRESSThe PDA has agreed with its underwriters totemporarily extend professional indemnitycover for all PDA members regardless of theirpolicy who are involved in Swine Fluvaccination programmes delivered viapractice-based commissioning, subject tomeeting any training or accreditationrequirements. This extension is only for theNHS Swine Flu vaccination programme andonly for the duration of the currentprogramme.

Swine Flu emergency measures;under what circumstances are you insured?

The PDA has expressed its concerns overthe willingness of pharmacists to accept apolice ‘Caution’ under threat that aprosecution will ensue if they don’t.

Although there is a real temptation to accepta ‘Caution’ when balancing it against theprospect of potentially acquiring a criminalrecord, it is no protection against theprofessional consequences of being subject toan investigation by the pharmacy regulator.

If a pharmacist accepts a ‘Caution’, the policeusually inform the regulator at the earliestopportunity as pharmacy is deemed to be a‘reportable profession’. If for some reasontheir reporting processes fail, the pharmacistis still obliged to declare the ‘Caution’ withinseven days so either way the information,when received by the regulator, will initiate aninvestigation into the pharmacist’s fitness topractice.

There may be cases whereby accepting a‘Caution’ is appropriate and the PDA willadvise pharmacists of that; but there is apropensity for pharmacists to accept such a

sanction under pressure becausethey believe that, even though theyprotest their innocence, the matterwill be concluded quickly with nofurther embarrassment ofbeing involved in such anexperience or stigmaattached to being detained.

It is also the case that if apharmacist is challenged bythe police for somemisdemeanour that theytake advice from eithertheir local or the dutysolicitor. In our experiencesuch solicitors (and thepolice for that matter) may nothave knowledge of theconsequences of accepting a‘Caution’. What they may notunderstand is that the pharmacistwill be reported to theprofessional regulator and thattheir livelihood will be at risk.

Nor may they appreciate that theDisciplinary Committee does not

‘look behind’ the offence tojudge whether or not thepharmacist was innocent. TheCommittee deem that byaccepting the ‘Caution thepharmacist has already

admitted guilt.

The PDA has been involved in caseswhereby employers have encouragedthe police to arrest pharmacists onthe grounds of theft or fraud. In thePDA’s view many of these arrests donot give grounds for any of these

charges; however by accepting the‘Caution’ as a pragmatic option,pharmacists may have prejudiced theirposition and increased the chances ofbeing removed from the Register.

The PDA advises pharmacists to alwaysseek advice from its lawyers beforeagreeing to accept a police ‘Caution’.

Pharmacists warned; do not proceed with ‘Caution’

News

Progress so far.The PDA Union became listed last year and official unionstatus has provided statutory rights to representmembers in grievance and disciplinary hearings. This hasbeen done with increasing success, protecting membersfrom unfair treatment as a result of unreasonablebehaviour by some employers.

Independent Status

The next and most important stage of developmentwill be to achieve ‘Independent’ status which will providecollective negotiation and representative rights. This should beachieved before the second anniversary. This will requirethe union to demonstrate it has conducted its affairs legallyand democratically whilst operating as a ‘listed’ trade unionand that there is no reliance, financially or otherwise,on any employer.

One of the main criteria that the Union Certification Officer willbe examining is the capability to negotiate and consult at anational level, which is already being done most notably withrespect to the RP regulations and the (employment)contractual changes that have ensued. The union’s growinginfluence on the national stage should be apparent to him asdemonstrated in meetings with employer representativeorganisations and in recent correspondence between the PDAUnion and the Minister of State for Health, Mike O’Brien,regarding the campaign to delay the RP regulations;

in a letter to the PDA he stated:

“….I also considered other matters [that PDA have raised],”he said, “such as the concerns the PDA helpfully raised in ameeting with officials in relation to rest breaks.” He went on;“On rest breaks, as you know, this is a complex matter involvingthe Working Time Directive [Regulations]; we are therefore inthe process of seeking legal advice, and officials will be intouch with the PDA in due course to discuss this further.”

There is now widespread acknowledgement that the PDA hasclearly shown how the RP regulations completely contradictand disregard the employment rights of the individual.

Objections received

When application for listed union status was initially made in2008 an objection from an undisclosed body was made;presumably in an attempt to strangle the PDA Union at birth,but the reservations of the detractors were dismissed by theCertification Officer. If an organisation objects to theforthcoming Independent status application then their identitywill need to be disclosed.

There has been quite a bit of interest in Congress House, thehome of the TUC, in the progress of our fledgling Unionbecause there has not been a new trade union formed for overtwelve years. This fact is probably a reflection of the way labourrelations has evolved over the years where the British labourmarket has become much more flexible and the powers oftrade unionism have been curtailed. In this context the

formation of the PDAUnion is a formidablestatement bypharmacists who areseeking to have theirrights protected, theirvoices heard and thecollective power oftheir influencerecognised as theynever have before.

Next step - Bye-elections

The challenge now is to get as many pharmacists as possibleinvolved in the grass-roots of union activity – through themembership groups. Bye-Elections will be held in April 2010and we will be seeking nominations for the MembershipGroups in February 2010 in the following categories; HospitalEmployees, Community Employees, ‘Primary Care andSpecialists’ and Locums.

PDA members are urged to get involved and to play theirpart in pharmacy’s not so quiet revolution!

GPhC chief would welcomeLocum involvement.Bob Nichols, Chairman Elect of the new pharmacy regulator theGeneral Pharmacy Council has signalled to locums that hethinks that they are underrepresented in pharmacy which hasstimulated some to suggest that there should be anorganisation that represents locums’ interests.

Mr Nichols is new to Pharmacy but we know he is a quicklearner and he was informed that a representative groupalready exists by Lindsey Gilpin during a recent meeting.“He wasn’t aware that we have a very strong constituencythrough the PDA Union Locum Membership Group.” saidLindsey who is also a member of the English Board and thefounder of the web forum, LocumVoice, “The last thing wewant is yet another organisation to fragment pharmacy ordilute the voice of locums when we have a perfectly effectivedemocratic organisation already functioning that can representour views. The PDA and PDA Union are the only organisationsthat have stood up for locums and provided them with a focalpoint of support for many years, so locums would be betterserved by joining an organisation rich in experience with weightbehind it rather than setting up a new one from scratch.”

Lindsey also urged pharmacists to get involved andcontribute to the locum agenda by putting themselvesforward for election to the fourteen-strong Locumcommittee when bye elections take place in April 2010.

“The PDA and PDA Union are the onlyorganisations that have stood up for

locums and provided them with a focalpoint of support for many years...”

www.the-pda.org insight winter 2009 |15

Discrimination Overview

Examples: Direct Discrimination

At the PDA, we receive a large volume of complaints from our membership claiming that they have been discriminated against in theworkplace. The concept of discrimination can be difficult to explain and the purpose of this article is to assist members in understandingwhat discrimination is, when it can arise and what their rights are if it does.

What is discrimination?Discrimination occurs where an individual is treated less favourably onthe basis of their sex (or marital status), race (or nationality), sexualorientation, religion (or belief), age or disability.

The lawWhilst legislation governing sex and race discrimination has been inexistence since the 1970s, the other strands did not come into forceuntil 1995 (Disability) 2003 (Sexual orientation, Religion and belief)and 2006 (Age). Discrimination law for the most part is therefore arelatively recent concept.

When might discrimination happen?Unlike unfair dismissal, discrimination can take place at anystage of the employment relationship or for the selfemployed period entered into. You could therefore bediscriminated against in the recruitment process (refusal ofinterview or offer of a job), your time at work (with regardsto poor pay, benefits, training, a lack of promotion,disciplinary action being taken), being dismissed, or even posttermination (receiving an adverse reference).

Types of discriminationDiscrimination can be “direct”, where the reason you are being treateddifferently is obviously on one of the six protected grounds. It can alsobe “indirect” where there is equal treatment for example between allraces, but the policy of your employer has an adverse impactdisproportionately on one race. For those of you who are concernedabout being punished for alerting your employer to the fact that youhave been discriminated against, the law protects you from being“victimised”. You are also protected from “harassment” which

essentially is unwanted conduct which has the purpose or effect ofviolating your dignity or creating an intimidating, hostile, degrading,humiliating or offensive environment for you.

Difficulties proving discriminationDiscrimination is not easy to prove and if alleged will in the majority ofcases be taken very seriously by employers and colleagues. Careshould be taken to ensure that the reason you are being treated lessfavourably than others is on one of the six protected grounds. Themistake that many individuals make is that they regard themselves asbeing treated differently which may well be true, but the reason for

the difference in treatment is not one of the sixleagally acknowledged

discriminatorygrounds.Consequently, whilst

these individuals mayhave a remedy inpursuing grievances

claiming that they havebeen unfairly treated they

cannot allege discriminationbringing legal proceedings on the basis

that they have been discriminated against.

Unfortunately, another mistake individuals make is to believe thatbecause for example they are the only female in the workplace andthey are being treated differently, this treatment must be becausethey are female and this constitutes discrimination. Much more thanthis is required to prove discrimination and to assist you further inunderstanding what is needed we have provided a few examples of“direct” discrimination for you to consider.

These examples are perhaps simplistic however the various strands of discrimination will be explored in greater detail in furtherpublications of Insight and will be found on our website: www.the-pda.org.Future articles will include illustrations of “indirect” discrimination, discrimination by association, defences to claims of discriminationand the role of the Equality and Human Rights Commission with regards to enforcing the law.

Sex Discrimination

A woman pharmacist is unsuccessful in her job application.She is the only female to apply for the position along with onemale. The man was given the job but when the employer waschallenged they admitted that he had fewer qualifications andmuch less experience than the woman.

Race Discrimination

A Nigerian pharmacist is dismissed for failing to reportdispensing errors he made and failing to follow SOPs. Twoweeks previously, a Non-Nigerian pharmacist received a firstwritten warning for the same offence. Both individuals hadclear disciplinary records and the same length of service.

Sexual Orientation Discrimination

A gay male is denied a promotion to the position of PharmacyManager. During a feedback session he is told that the reasonhe was not promoted is because “he is a bit like that gay guyoff the telly” and no one will take him seriously as a manager.

Religious (or Belief) Discrimination

A Muslim self-employed locum has his bookings cancelled asa consequence of taking a break to pray notwithstanding thefact that an agreement was reached on this issue weeksearlier.

Age Discrimination

A pharmacist who is 50 years old is informed that he hasbeen selected for redundancy. When challenged, hisemployer tells him he has been in the job long enough and itis time to give his younger, dynamic colleagues a chance toprove their worth.

Disability Discrimination

A disabled individual who has a hearing impairment but canlip read very well is dismissed from her position as pharmacistafter a patient complains that he does not feel comfortablebeing treated by her. No concerns relating to her ability to doher job are raised.

www.the-pda.org| insight winter 200916

An enhanced membershipbenefits scheme

A wider range of benefits now launched!

The PDA prides itself on listening to its membersthrough focus groups and surveys. Following on fromone strand of discussions, in the Autumn of 2008 arange of new and additional benefits to PDA memberswas launched which we called PDA PLUS.

This initiative recognised that beyond their work aspharmacists, PDA members do actually have a life! PDAmembers have needs that go beyond those simply dictatedby their occupations. They go on holiday, buy wine, usehotels and dine out.

PDA PLUS provides access for members to a range ofspecially negotiated preferential services that are designed tosave them money. These benefits are also available toimmediate members of the family.

To give PDA members peace of mind, where possiblethese special offers come with an exceptional

discount guarantee. This means that if you canfind these services from these providers on a like-for-like basis at better prices anywhere else in the

UK, then PDA Plus will not only honour that lowerprice, but will also compensate you for your trouble

by giving you monetary vouchers.

We reckon that it will take only a few short months of regularuse of the PDA Plus Benefits service on routine purchases, formembers to save themselves enough to fund their entire annualPDA membership subscription – eg. six meals at the 2 for 1offer or one holiday for the family with considerable discounts.

In addition to that, in some instances, the provider will pay anintroductory fee to the PDA, which because it is a not-for-profitorganisation, will mean that any income so generated will helpto fund more services for members.

The Win Win ScenarioWe believe that this creates a classic WIN – WIN scenario:PDA members and their families save hard-earned income bygaining access to quality services at guaranteed discountedrates. The PDA generates additional funds which it can use tokeep PDA membership subscriptions down while still being ableto invest more in developing more services for members.

At the launch, the PDA PLUS benefits scheme consideredmainly leisure benefits. However, after recent membercomments and suggestions, we have now also developed a

further range of benefits that support members in their practice.These include;

A CPD support serviceAre you concerned about the RPSGB’s threat to referpharmacists to the Investigating Committee for failure tocomply with the CPD requirement?

The PDA’s CPD support partner provides PDA memberswith a choice of bronze, silver, gold and platinum standardsupport service with 30% discount for PDA members.

Income protection in the event of sickness oraccidentHow long would your employer continue to pay your salary inthe event that you fell ill?

How do you replace your self-employed income if you havean accident?

Working with the Pharmaceutical & General Provident Society,the PDA has delivered preferential terms for members for thisvery established mutual scheme which provides income inthe event of sickness or accident for pharmacists.

Specialist self-employed accountantsThis is a tried and tested annual accounts and tax returnservice for locums with a very preferential price promise.

Tax refund serviceHave you been overcharged on your tax bill, have youclaimed back all of your allowances especially thoseparticular to pharmacy?

The average taxpayer is due a refund of more than £200,but has no idea.

Refunds negotiated so far range from a few pounds tomore than £11,000.

No refund – no fee charged.

Private Medical InsurancePreferential rates provided by some of the leading providersincluding BUPA, AXA, PPP.

Leisure benefitsForeign holiday discountsDiscounts on hotel stays in the UK2 for 1 restaurant discountsHoliday care hire – significant discountsDays out at Merlins Attractions: 15-20% reductions.Many more besides!

We will continue to develop the range of benefits availableto PDA members and further announcements will be madein due course.

The full range of benefits currently available can be found on:

www.the-pda.org/pdaplus

Why not take a look,it could mean big savingsfor you and your family!

www.the-pda.org/pdaplus

www.the-pda.org insight winter 2009 |17

www.the-pda.org| insight winter 200918

Professional regulation –

Much ado about nothing“A traditional comedy which hasthe potential to turn into atragedy.”A pharmacist was on duty when therepeated mistake of others came to light.The pharmacist did everything within herpower to address the mistake, arrange forthe correct medication to be dispensedand delivered to the residential home toensure that the patient was notdisadvantaged overnight. As the errorcame to light late on in the day and as shewas a locum and could not remain behindto accept the erroneous medication (shedid not have the keys to the pharmacy) shemade arrangements to have it collected bythe delivery driver the next day and left anote for the pharmacy manager to ensurethat it would be followed up.

Following a complaint, an investigationshowed that the medication had not beencollected until some days after the incidentand as there was more than onepharmacist implicated, the Society’sinspector recommended that those thatwere directly involved in committing theerror should receive an advisory letter andthat no action should be taken against thePDA member who had handled thecomplaint “professionally throughout”.

When the results of the investigation werereferred to the Investigating Committee(IC) she was advised to accept theInspector’s recommendation; the reportwas non-contentious and therefore therewas no necessity in our view to make adetailed submission in defence. It neveroccurred to us that the IC would overturnthis recommendation of the society andseemingly ignore the facts in the casesummary. They did; and issued ourmember with a letter of advice.

However the letter of advice was not toadvise our member in the handling ofcomplaints, but to advise her on how toprevent dispensing errors occurring in thefirst place. Our member was mostdistressed and her line manager was soincensed that he wrote to the Societyexpressing his amazement that the locumpharmacist had been implicated.

The IC to our surprise then re-heard thecase on the strength of the letter withoutgiving the pharmacist any indication thatthey were doing so. They decided that she

still should receive a letter of advicethough this time citing a different clause ofthe Code of Ethics and deeming that sheshould have taken responsibility for thecollection of the unused medication.

The PDA wrote to the Director ofRegulation stating that if the Committeeoverturns a recommendation withoutgiving the pharmacist the benefit of beingable to submit their full version of events.Then it (the Committee) is actingunreasonably by making such a decisionwithout the full facts.

We also pointed out that they hadreviewed the case based on a letter from athird party who was not on record as herrepresentative and at no time did theyinform the pharmacist that a review wastaking place. The Committee, in our view,having decided to review the case, haddisadvantaged her by not giving her thebenefit of seeking legal advice. Therefore,the committee had not afforded ourmember a fair hearing.

To their credit, the Committee Secretariatdecided that they did have the powers toreconsider the allegations under rule 15(3)and invited a submission so as the casecould then be heard by a differentcommittee.

The PDA congratulated them for taking thisapproach in the interests of fairness andjustice; the decision was ‘that no furtheraction should be taken’

Macbeth“Look like the innocent flower,but be the serpent under ’t.”Act 1, scene 5

If an allegation is made against apharmacist and the Society decide that it isof such potential seriousness that they

Sometimes, the professional regulation cases that we deal with at the PDA canbe likened to something that resembles a tragic Shakespearean play. Sadlynone of these cases are entertaining; in this feature we expose the drama.

You couldn’tmake this up!

“Dost thou not suspect myplace? Dost thou not

suspect my years? O that hewere here to write me down

an ass” - Act 4, scene 2

“O Hero! What a Hero hadstthou been!” - Act 4, scene 1

“I am a wise fellow, andwhich is more, an officer,and which is more, a

householder, and which ismore, as pretty a piece offlesh as any is in Messina,and one that knows thelaw,….” - Act 4, scene 2

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A Shakespearean tragedy?must remove the pharmacist frompracticing because if true they could be adanger to the public, they can apply for anInterim Order which either stops or restrictsthe pharmacist from practicing until a fullcase can be heard by the DisciplineCommittee.

In some cases such action may be justified,particularly if someone is quite obviously adanger to themselves or the public whichshould be evident by their welldocumented and observed behaviours.

But where this becomes unjust regulation,in our opinion, is where there is only onewitness and the complaint may bevexatious, it transpires that pharmacistscannot defend themselves against theallegations by summoning the complainantas a witness.

In a recent alleged sexual assault by apharmacist, the chairman of the panelruled in an Interim Order hearing that hewould not allow cross-examination of theONE complainant witness and he wouldnot allow the registrant or his employer togive evidence as to the facts. The InterimOrder hearing was not there to establishfacts, the chairman judged, only toestablish if the allegation was seriousenough to warrant the imposition ofconditions to his Registration or removal ofthe pharmacist from contact with thepublic, by his suspension.

The Society decided that they wanted thepharmacist suspended and so brought theapplication.

Although the Society may wish to be seento be doing the right thing to protect thepublic, there were other ways of achievingthe same aim in these circumstances and itwould be unreasonable to deprive thepharmacist of his livelihood based on suchflimsy evidence.

The Society eventually agreed to the PDA’soriginal recommendation that there be arestriction put on the pharmacist’spractice, this being simply not to holdconsultations with females in theconsultation room on his own.

Pharmacists must now be aware that inthese days of draconian regulation theycan no longer rely on the adage that‘you are innocent until proven guilty’.

The Merchant of VeniceShylock seeks his pound offleshAs a pharmacist you can now find yourself,not only funding your own legal costs butalso the legal costs of the Society inprosecuting the case against you.

We have represented pharmacists recentlywho have been subjected to an applicationby the Society to recover their costs, whichhas also included the cost of security staffand the tea and biscuits that have beenprovided for the witnesses and their legalteam.

Applications for costs made by the Societyare now becoming the norm but thankfullythey have not succeeded with many. TheSociety’s position is that, since the Order of2007, ‘costs follow the event’ and thatwhere there is a finding against apharmacist that justified the bringing ofproceedings, those costs fall to be paid bythe pharmacist who brought theproceedings on themselves, by reason ofwhat they did (or did not do).

In one instance they have been successfuland have won a costs order from a womanwith three children and the sole incomesource for the family, who was prosecutedfor assaulting a policeman when he (andeight other Police officers) tried to removeher from a housing benefit office.She would not move from the buildingbecause she was homeless with herchildren and was very emotionally charged.

The Society applied for costs because atthe Disciplinary Committee hearing she

had contested the charges; she was not onthe register in the UK at the time ofcommitting the offence - she wasregistered abroad - and also she would notadmit that her fitness to practice wasimpaired as a result of the actions she tookto what she saw as protecting her children.Even the Magistrate at her trial showedcompassion and expressed that he hadsympathy with her dilemma, but ourregulator found that her fitness to practicewas impaired and that the public had to beprotected.

She was given a warning as to her futureconduct and ordered to pay a proportionof the Society’s costs.

More sinister in our view is the subtle threatthat the Society’s legal representativesmake that if a particular defence argumentis run, then they will make a costsapplication, if it does not succeed.

Although it is supposed to be a doubleedged sword and the pharmacist ought tohave the same right, in any cases where wehave asked for costs, because theCommittee has not found the pharmacistwanting we have been told that the Societyhave the right to bring the case becausethey are acting in the public interest.

as the Bard said; the Court may sentenceyou once for an offence (a fine of a fewhundred pounds) and then the RPSGBseeks an Order against you, which canharm your income by an amount equal to500 times the fine!

“Out, damned spot! out, Isay!” - Act 5, scene 1

“Things without all remedyshould be without regard;

what’s done is done”- Act 3, scene 2

“The devil can cite scripturefor his own purpose”

- Act 1, scene 3

“And thereby hangs a tale”(the taming of the shrew)

- Act 4, scene 1

“If you prick us, do we notbleed? if you tickle us, do

we not laugh? If you poisonus, do we not die? and if

you wrong us, shall we notrevenge?” - Act 3, scene 1

Ensure changes to your ‘Contract

Pharmacists will never be immune to theimpact of the recession whilst workingin a commercial environment nor canthey be unreasonably protected fromgovernment cuts in the NHS.

One method used to control costs, ofwhich we have had recent experience, is tochange employees’ contracts to introduceterms that, in the company’s view,“improves the flexibility of the work force”.

Superdrug has recently introduced a newemployment contract for all pharmacists;although they claim that they had been ‘inconsultation’ for some months the trueimplications did not become obvious totheir employees until they were being toldto accept the new terms or be dismissed.

Members who contacted the PDAexpressed the view that they were notaware that the consultation was takingplace until the ‘new contract’ waspresented as a fait-a-compli. Otheremployees were passive in theiracceptance of the process until the realityof what had happened suddenly dawnedon them; regrettably, some are stillprobably completely oblivious and maywell remain so until the company chooseto rely upon any of the new clauses whichdisadvantage them.

What rights do employeeshave if new contract clausesare proposed?At the outset employees must be preparedto be active and ensure representationduring consultations on their employmentcontract. Can you imagine that doctors ornurses allowing contractual terms to be

implemented without negotiations andconsideration for changes in contract?

It is the employers’ responsibility, whenmaking widespread contract changes to:

• Produce and communicate a case forthe changes outlining what theproposed changes are, who it will affectand why they need to make them

• Enter into a consultation period wherebythey take views from groups orindividuals who are affected by thechange.

• Following the consultation period,further communicate what changesthey have made as a consequence of theconsultation.

• Discuss, on a one-to-one, the impact anychanges will have on individualsconcerned and asses whether or notthey have specific needs.

Contract clauses that causeconcernOur initial thoughts on the Superdrugcontract were that it is one sided allowingthe employer the greatest flexibility it couldpossibly have with regards to work patternsand environment. We are aware ofexamples where other employers’processes are flawed and where theybelieve that the reason of ‘business need’ isreason enough to impose changes.However there are enough unjustifiableclauses in the Superdrug contract to causeus serious concern and from which allemployees should learn if they are facedwith a similar situation.

“….We can require you to perform newor additional duties/responsibilities.”

This appears to allow the employer tomake changes to an individual’s ‘duties orresponsibilities’ without consultation ornotice. This may have implications forthose who do not wish to be theResponsible Pharmacist or take onadvanced or enhanced services.

“….You agree that if we need you to doso that you will work in excess of anaverage 48 hour working week and thatyou therefore agree to opt-out of the 48hour average limit set out in theWorking Time Regulations 1998. If thelaw in future permits, you agree that ouraverage working hours should bemeasured against whatever referenceperiod we may reasonably decideshould apply.”

The law determines that an individualworker and his/her employer can validlyagree to opt-out of the 48 hour maximumworking week imposed by the WorkingTime Regulations. We believe that insertingthis term in the contract is disingenuous ofthe employer. It is implied that there is nochoice in the matter and they are gettingan ‘opt-out’ agreement through the backdoor. A worker has protection againstbeing forced to work long hours and it isunlawful to subject a worker to anydetriment for refusing to sign an opt-outagreement. It is important that employeeswho do not agree with a clause such as thismake it clear before they sign the contractor by giving notice (usually one week) inwriting as soon as possible.

“….For the avoidance of doubt, we treatSundays as a normal working day. Youwill therefore be expected to workSundays if we require you to do so. Ifyou wish to opt out of working Sundaysaltogether you must give your linemanager 8 weeks notice. Upon theexpiry of the notice your number ofcontracted hours will be reducedaccordingly, unless your line manager isable to allocate you additional hoursduring the week.”

“It is unlawful to subjecta worker to any

detriment for refusingto sign an opt-out

agreement”

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of Employment’ are done fairlyThis clause puts anyone who does not wantto work and has not before worked onSundays in a detrimental position andmeans that the employee is giving powerto the employer to permanently cutcontracted hours if they wish to do so.This clause potentially discriminates againstindividuals who view Sundays as a day ofrest or prayer for religious reasons and maybe viewed as unfair for those who havecaring responsibilities or simply have apreference not to work Sundays.Employees who do not wish to workSundays for whatever reason should makethis clear to their employer.

“...You must not undertake additionalemployment outside of the group...Thisincludes undertaking duties as a locumpharmacist out side of your employmentby the Company.”

This means that employees will beprohibited from doing locum work outsidenormal working hours. Many employedpharmacists also undertake locum dutiesand most employers understand this. Someof you may find this clause could result in asignificant drop in your total income,particularly those pharmacists who have aportfolio career, are employed part-timeand have other arrangements. The reality isthat your employer should only beconcerned with other employment youhave outside its business if it can be saidthat it interferes with their business. Inmost situations any employer preventingyou from working elsewhere as a locum isin our opinion going beyond what isnecessary to protect its’ business interests.Clauses such as this should state at aminimum that the consent of the employerwill not be unreasonably withheld for thoseseeking to work elsewhere.

Can I be dismissed and willthis be fair?Employees may be dismissed from theiremployment for fair reasons only. Dismissalfor refusing to sign a contract with newterms and conditions could be considereda fair reason by an Employment Tribunal incertain circumstances.

What needs to be considered is thebalance between an employer’s need tochange the existing terms against theemployee’s need to keep things as theyare. The Courts have in the pastappreciated that some employers have hadno choice but to make changes in order to

keep the business afloat and have foundthat employees refusing to accept changeshave been unreasonable in doing so.

The following factors could render adismissal fair:

1. A genuine and meaningfulconsultation process has beenfollowed.

2. A sound business reason exists formaking the changes proposed.

3. If it is necessary or even vital to thesurvival of the employer’s businessthat the new terms and conditionsare accepted; it is then up to theEmployment Tribunal to determinethe balance between how vital andthe employee’s rights.

4. A large proportion of employeeshave accepted the terms already.This could be evidence as to thereasonableness of the changes butwould not decide the case alone.

5. If a trade union had recommendedthe proposed changes.

6. If the majority of employees signthe contract the minority are put atincreased risk of being dismissedfairly.

The employer must still considerindividuals’ personal and domesticcircumstances which are unique to theemployee and the fact that the employeeis simply happy with the terms as they areand have no desire to change them.Consequently it is important thatemployees should raise any concerns withtheir employer and obtain writtenresponses before signing any new contract.

Signing the contract meansacceptance of it!In the case of Superdrug,the PDA believes that toomany changes had beenput forward and thatdismissal would havebeen challengeable;however thosepharmacists who signedthe contract are nowdeemed to haveaccepted the changes.

If employees wish tochallenge their employer

and risk dismissal then only those with oneyears’ continuous service are eligible tobring a claim for unfair dismissal andtherefore those with less than one yearwould be advised to sign their contractinforming their employer that they aredoing so not because they agree with thechanges but because they feel that theyhave been left with no other option.

Pharmacists who are unable to comply withcontractual changes on religious groundsmay have a case to argue that they arebeing discriminated against on the basis ofreligious beliefs; one years’ continuousservice is not required for such a claim.

Whilst success cannot be guaranteed, thePDA is reasonably confident thatemployees with at least one years’continuous service who cannot complywith changes to their contract due tohaving caring responsibilities or on religiousgrounds would succeed in bringing unfairdismissal claims in an Employment Tribunal.

If employees wish to challenge contractualchanges in such circumstances, we wouldadvise that they write to their employerstating that they do not agree to it on thebasis that it represents fundamentalchanges to the contract and they do notconsider their refusal to comply with thechanges to be unreasonable.

Consequently, if an employee is dismissedfor refusing to agree to new terms they willconsider themselves to have been unfairlydismissed and can seek the appropriateremedy through an Employment Tribunal.

Members who find themselves in asimilar situation in future would beadvised to make use of the collectiveimpact that the PDA Union can haveon their behalf.

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Has my employerMany employees have the belief that in theevent of a dispute between them and theiremployer, the employer will act properly,reasonably and in accordance withestablished good practice. 50% of incidentsthe PDA deal with are employment relatedand our advisors see many cases whereemployers have not treated membersproperly. Being treated fairly is afundamental element of being employedand one frequently overlooked by managershandling disciplinary meetings. Quite oftenthe management approach is “Guilty untilproven innocent” and employees can facean uphill struggle to defend themselvesagainst allegations their employer hasalready made its mind up about.

The IncidentA recent case involving one of the longestestablished pharmacy multiples brought intosharp focus the problems that can occurwhen an untrained and incompetent manageris in control of an investigation into a seriouspatient safety incident. The fundamentaldetails of this incident were simple, but thetortuous and misconceived investigation intothe event caused even case hardened PDAadvisors to be shocked.

The pharmacy team had won a Christmashamper and this had been kept in thepharmacy. Over the weeks various items hadbeen consumed and a member of thepharmacy staff had put some peanuts into adispensing bottle, with the intention of savingthem for work colleagues. Unfortunately thedispensing container was supplied to a patientand along with his medication in the bottlewere some nuts. The consequences ofingesting even a small amount of nuts couldhave been serious in a sensitive person, butfortunately the patient spotted the problemand brought this to the attention of thepharmacy. Clearly this was a patient safetyincident and the non-pharmacist storemanager started an investigation.

The store manager instructed a supervisor toinvestigate the incident. It is good practice tocompletely separate the investigation rolefrom that of the disciplinary manager topreserve impartiality and fairness. Aninvestigator should independently conductthe investigation and then hand their findingsover to a disciplining manager whencomplete.

The InvestigationAny competent investigation should havequickly established the facts of the case byeffective questioning of the 7 staff who workin the pharmacy. It only became apparentmuch later that what actually happened were22 separate interviews with several staff beinginterviewed on 4 separate occasions.

At our member’s interview he explained thathe had not been aware nuts had been putinto a dispensing container; otherwise hewould have intervened to stop it happeningimmediately and had only been on duty forone day in the pharmacy as a member of therelief team. After the meetings he thoughtthat his explanation would be the end of thematter. A few weeks later however a letterarrived inviting our member to a disciplinarymeeting. Along with the invitation was a setof heavily censored notes from one memberof staff only. The manager explained that thenotes were censored because he was onlyobliged to provide information that relatedsolely to the member and he was not going toprovide any other information. The memberat that stage contacted the PDA for advice.

PDA InterventionOur immediate advice was that an employeeis entitled to see the full case against them inorder to defend themselves properly and themeeting must be postponed until a completeset of notes was provided from all the staffpresent on that day. The request to adjournwas made and the meeting postponed. It wasat this point, the incompetence of the store

manager became apparent and the PDA atthe request of the member startedcommunicating directly with the companyhead office in order to ensure our memberwas treated properly and fairly.

The manager insisted when speaking to thePDA Union representative that he wasfollowing company policy and his HR advisorswere in agreement with his approach.

The PDA wrote directly to the HR departmenton behalf of its member to highlight theproblems, however HR did not even have thecourtesy to acknowledge the letter; theyignored it and chose to communicate withthe PDA through the incompetent managerinstead.

The disciplinary meeting was rescheduled andalthough the manager had now provided aset of uncensored notes from the one witness,only selected information was provided from2 out of the 6 other witnesses. Freshinformation, revealed now in the uncensorednotes supported our member’s position thathe was not involved and exposed the practiceof consuming and keeping nuts in thepharmacy was a long established one and hadhappened before.

These revelations shocked our member andhe felt he was being singled out and thewhole process was a shambles, he also feltthat evidence was being deliberately withheldand he could not understand why hisemployer was being so intransigent aboutproviding information that could help to clearhis name.

Quite often the management approach is“Guilty until proven innocent”

gone nuts?On the advice of the PDA and acting on itsmember’s behalf, a grievance was raised aboutthe withholding of evidence and the conductof the manager.

The response of the company to the grievancewas astonishing; HR wanted the disciplinary togo ahead and for the grievance to be heard aspart of the disciplinary meeting, as that wascompany policy. The PDA view was that it waswholly unfair and inappropriate to attend adisciplinary meeting where evidence thatcould help defend an individual is beingactively withheld by the manager conductingthe meeting, and then expect the samemanager at the same meeting to be impartialregarding the grievance about withholding theevidence, he is deciding to withhold.

After PDA representations, the companyconceded to conduct a separate grievancemeeting led by a senior manager not involvedin the case. In addition it dropped plans todiscipline our member, albeit without anyrecognition it was wrong.

Uncovering the factsWhat then commenced was a marathoneffort to try and extract the truth from thecompany through the use of the grievanceprocess. At the first grievance meeting andfollowing detailed questioning by the PDArepresentative, the senior manager conceded:

• 22 separate investigation interviewswere conducted and he agreed thiswas “less than desirable”

• Neither the disciplining manager northe investigator had received anyformal training and the managerlacked skill, knowledge andexperience

• The investigations caused uncertaintyand distress in staff

• The evidence should not have beencensored and the manager waswrong to do so

• Evidence was wrongly withheld andshould have been disclosed to ourmember

• The manager had interfered with theinvestigation by reading each witnessstatement as it was gathered anddirecting further questions to beasked; as such this had brought hisimpartiality into question

• That HR should have acknowledgedletters sent to it by the PDA

• The company does not consider itacceptable for nuts to be stored in thedispensary and regards this as a veryserious matter

• The hamper should have beenchecked to ensure that there were noitems that could have posed a risk topatients or customers

• The management team requiredtraining to improve their competence

One desired outcome of our member from thegrievance meeting was to receive an apologyfrom the store manager. However the seniormanager said “I do not believe he hasspecifically done anything to apologise for”I do not believe that [store manager] at anystage acted inappropriately or maliciouslybut these shortcomings were due to a lackof knowledge or experience in suchmatters”. This statement caused astonishmentbecause the manager was senior and shouldhave known how to handle such situationsproperly. An aggravating factor of the case wasthat the manager was repeatedly informed bythe PDA that he was acting contrary tocompany policy and the minimum statutoryprocedure, but he ploughed aheadnonetheless.

An appeal was made, with a request for copiesof the notes from the grievance manager’sinvestigation to be made available to ourmember. The company dismissed this requeststating they were under no obligation toprovide these notes. The PDA pressed thecompany further and argued that withholdingthe notes from an investigation into agrievance that was itself about the withholdingof evidence, was unlikely to demonstrate goodfaith, transparency and a genuine attempt torestore trust in the company. It was alsopointed out that the employee had a legalright to see this information as it referred tohim personally.

The company relented, provided the notes andthe appeal was heard with further substantiverepresentations being made by thePDA. The appeal managerapologised for thediscrepancies identified inthe original grievanceoutcome and apologisedon behalf of the businessfor the whole process,but still did not feel it wasappropriate for themanager to apologise. Thiswas the final straw and our

member felt that the trust in his employer hadbeen completely eroded and as aconsequence he decided he could no longerhave confidence in his employer and handedin his resignation.

Conclusion & Lessonsto be learntWhat struck the PDA team about this case wasthe sheer intransigence of the company andthat every scrap of information, apology andconcession had to be laboriously extractedfrom it. This behaviour meant a conscientiousand loyal employee lost faith in his employer’sability to treat him fairly. Our member wasabsolutely convinced that had he not soughtadvice and support from the PDA, he wouldhave been disciplined for something he wasnot guilty of. The incident was a patient safetymatter and the RPSGB could have beeninvolved at any stage by the patient or others.A disciplinary sanction issued by an employerhas routinely been used by the Society assupporting evidence in fitness to practiseenquiries and it is essential therefore for allpharmacists to be aware of the professionalramifications of employment disputes and beprepared to defend their reputation robustly.

Employers rely upon their managers,supported by HR, to conduct themselves in acompetent manner during employmentdisciplinary proceedings. As this casedemonstrates the size or pedigree of theemployer is no guarantee of the competenceof senior managers. Only through theintervention and perseverance of the PDA didthis employer admit one of its long servingexperienced managers, charged with dealingwith a patient safety incident, was in reality,untrained, had acted wrongly by withholdingevidence, had wrongly interfered with theinvestigation, calling his impartiality intoquestion and behaved in an unacceptablemanner.

The key message to all PDA members is tonotify us as soon as an employment issuearises in order to get independent advice

and to protect their position. Forthose pharmacists who haven’t

joined the PDA yet, maybe itstime to get peace of mindthrough membership,rather than rely on youremployer to get it right.

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