problems in contracts of employment. - The PDA · pharmacists, Pre-reg’s, locums and Primary Care Pharmacists. Based on ‘real ... Dealing with, and overcoming problems in contracts

Dealing with,and overcomingproblems incontracts ofemployment.

A special publication by the PDA

The Pharmacists’ Defence Association,

The Old Fire Station,

69 Albion Street,

Birmingham.

B1 3EA

Contact information

general enquiries 0121 694 7000

incident reporting 0121 694 7007

fax 0121 694 7001

web www.the-pda.org

email [email protected]

2. 3.

Dealing with, and overcoming problems in contracts of employment

The purpose of this publication

This publication is intended as a guide to all pharmacists who are employed undera written contract of employment, or as self-employed locums working under acontract for services. This may include community, hospital or PCT employedpharmacists, Pre-reg’s, locums and Primary Care Pharmacists. Based on ‘reallife’ situations in which the PDA has been involved, it contains sample employmentclauses which have caused problems or have resulted in disputes betweenemployees or locums and employers which the Pharmacists’ Defence Associationhas had to deal with in the past. In highlighting problem clauses and also insuggesting approaches that may be taken by employees or locums, it is hopedthat this guide, will assist pharmacists by helping them avoid or at least minimiseproblem employment clauses in the future.

THE PHARMACISTS’ DEFENCE ASSOCIATION

The Pharmacists’ Defence Association (PDA) is a not for profit organisation whoseaim is to act upon and support the needs of individual pharmacists and, whennecessary, to defend their reputation. At the time of printing of this publication(June 2005) PDA had more than 10,000 members.

The primary aims of the PDA are to:

• Support pharmacists in their legal, practice and employment needs. • Provide insurance cover to safeguard and defend the reputation of the individual

pharmacist. • Proactively seek to influence the professional, practice and employment agenda

to support members. • Lead and support initiatives designed to improve the knowledge and skills of

pharmacists in managing risk and safe practices, so improving patient care. • Work with like-minded organisations to further improve the membership benefits

to individual pharmacists.

More information on the PDA is available on the website www.the-pda.org or telephone 0121 694 7000.

Index.

Clause No.: Page No.:

Changing employment contracts mid employment

Changing the usual place of work

Changing the usual hours of work

Notice periods

Working solely and exclusively for one employer

Restrictions on working after termination of employment

Locums and their contractual rights

Confidentiality requirements

Placing onerous professional responsibility on employees

Out of hours pharmacy provision

Responsibility for failures in staff training

Indemnifying the employer for wrongly endorsed prescriptions

Terms aimed at avoiding employment liabilities

Employees responsible for remitting their own PAYE

to the exchequer

Carrying PI insurance and indemnifying the employer

The legal position on selling a pharmacy and transferring the staff

to the new owner

Working times, days off and holidays

Retention of services after registration as a pharmacist

(for Pre-reg’s)

Requirement to take an unpaid break and stay on the premises

4. 5.


find out all about the pda at: www.the-pda.org |

Introduction.

Contracts and the lawDuring the course of 2004, the Pharmacists’ Defence Association dealt with more than 700episodes where pharmacists required help or support as a result of incidents occurring inthe workplace. Considerably more than half of these were episodes where a dispute hadarisen between an employer and an employee or locum. In the majority of these cases, theinvolvement of the PDA secured a satisfactory outcome for the employee (or locum). Insome of these cases, it was possible for the PDA to secure financial compensation in theform of a compromise agreement from employers who had treated their employees unfairlyor illegally and for Locums where their contract had been breached. The amount secured forPDA members during this period was in excess of £150,000.

There is relatively unrestricted freedom to agree contract terms between employees andemployers under UK law, with little statutory interference by government and other regulatorybodies. Successive UK governments have long sought to preserve this position in order tomaintain Britain's perceived lead as an 'employer-friendly' area within the European Union andattract industry and investment to the UK from within the EU and elsewhere. One consequenceof this however has been that in areas where employees have historically had little or norepresentation, or where the workforce tends not to challenge the content of their employmentcontract, the employers have largely been able to dictate terms to those seeking employmentwithin their businesses; this has resulted in a trend towards ever more 'flexible' contract terms(from the employer's point of view), which are frequently to the detriment of employees who (bycontrast) generally prefer well-defined working agreements which give them as much securityfrom unwanted change as possible.

6.

6.

7.

8.

8.

9.

10.

22.

22.

23.

23.

23.

24.

24.

24.

25.

27.

29.

30.

1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

11.

12.

13.

14.

15.

16.

17.

18.

19.

6. 7.



Risk Management.Risk Management happens when, after problems occur, their causes are examined andchanges to the system(s) are put into place to prevent their recurrence. The contract incidentsthat occurred during 2004 have been examined and many of their causes have been identified.A synopsis of issues and recommendations is contained in this booklet. Changing the 'balanceof negotiating power' will not happen overnight, but it will certainly help the process ifpharmacists read their contracts and consider the implications of the terms before they agreeto take-on jobs and thereby become bound by them. By studying this booklet, it is hoped thatpharmacists can be forewarned of situations which have led to problems elsewhere. Inparticular, this booklet contains contract clauses or styles of agreement that some employershave tried to persuade their employees to sign up to and in the majority of cases havesucceeded. We believe that subsequently, these clauses have led to serious employmentdisputes. Before any new contracts are signed in the future, pharmacists are urged to ensurethat they do not contain the types of clauses that are highlighted in this booklet.

Problem employment contract clauses1. “The employer may make reasonable changes to this contract upon giving reasonablenotice to the employee, such notice to be given either orally or in writing.”

This term has been appearing in pharmacist contracts of employment with increasing fre-quency. The practical effect of this clause is that it gives an employer carte blanche to makechanges to the basis of the employment agreement at any time it wishes and this can be doneto the detriment of the employee. The reason this can occur is that the employer only then hasto show that the change is 'reasonable' and that the notice to the employee was also 'reason-able' and it has secured whatever change it desires to impose at whatever notice it considers tobe reasonable. By way of example, an employer which has contracted to give two monthsnotice of termination of contract could (by notice the day beforehand) change the notice periodto the statutory minimum, or change the rate of pay with almost immediate effect.

In worst-case scenarios, it would be for the employee to prove it was not reasonable after theemployer had imposed such a change. Such terms should therefore be resisted at all costs andserious consideration should be given to simply refusing to contract on such 'loose' and inse-cure terms.

2. “The employee's usual place of work will be (insert name of Pharmacy) but he / she maybe required to work at other locations within the employers business, as required by theemployer and the needs of the business.”

The effect of this clause is that whilst an employee may consider that their job is fixed at a par-ticular location, the employer may for whatever reason decide that the employee should fromnow on work elsewhere, even though this may be to the detriment of the employee. Indeed, thisclause has even been used by some employers to unsettle an employee so as to bring about aresignation. This clause could require an employee to permanently relocate their work locationeven though this may be many miles away or in a location that is considered to be undesirable.

Suggested approach;Pharmacists who feel that they don’t want to accept this term should simply delete it from thecontract. If this clause is agreeable however, then before agreeing to such a term, pharmacistsmight want to add a 'reasonable' travel distance (or a maximum distance in miles) or they maywant to provide that such a transfer may only be temporary and limit the duration. If the scopeof the clause is not restricted as suggested, then in theory the employer, if it was so inclined ormotivated could ask a pharmacist to work in Exeter instead of Carlisle. The simple rule forpharmacists is that they should seek to secure clarification in writing - define the limits of thetransfer that they are prepared to accept, before it happens, rather than seeking to argue aboutit afterwards.

3. “The employee’s usual hours of work will be (insert details and number of hours)but he / she may be required to work more / less hours / Sundays / Bank holidays asrequired by the employer.”

This term gives employers the flexibility to demand that employees work extra hours when nec-essary and also to reduce the hours worked by the employee. In some situations, even if theemployee has good reason why they cannot work the hours that are being requested of them,the effect of this clause renders the employee in a potential breach of contract.

Suggested approach;If there is concern about this, then pharmacists are, once again urged to negotiate some limitsto the clause, such as maximum extra hours, frequency, removing Bank Holidays, Sundays, etc.

8. 9.


4. “The employee will be entitled to receive a minimum of one week’s notice (or theStatutory minimum, whichever is the less ) from the employer in the event that it wishes toterminate this contract. The employer will be entitled to receive from the employee a min-imum of two calendar months notice in the event that the employee wishes to terminatethis contract.”

This gives the employer a clear advantage over the employee, especially in the first year beforethe full protection of the Employment Rights Act (ERA) comes into effect to protect employeesfrom unfair dismissal. If employees accept this clause then they will be bound by it.

Suggested approach;Many employees will feel that it is unfair to give the employer such an advantage, they shoulddemand the same notice from the employer as it demands from them.

5. “The employee shall be exclusively the servant of the employer and shall at alltimes devote him / herself diligently to all assigned tasks; in particular the employeeshall not without the express permission of the employer be engaged, employed orotherwise involved in the business of any other commercial undertaking either alone orjointly with others. For the avoidance of doubt this restriction shall extend to the hold-ing of offices within other firms or companies, either as director or partner and whetherpaid or unpaid and shall include a prohibition on the holding of shares in any com-pany, provided that it shall be permissible to have a shareholding which does notexceed 5% of the total issued share capital.”

Increasingly employers want to ensure undivided loyalty, total control and ultimately the benefitof the employees full effort on their behalf. Such clauses are appearing in pharmacist employ-ment contracts with increasing regularity. The effect of such a clause is that the pharmacist mustexclusively be the employee of their employer and cannot be involved in any other employedactivities (whether paid or unpaid) without their employers express (usually written) permis-sion. This could prevent pharmacist employees performing any occasional locums elsewhere,or having a part-time evening job in any occupation. In some instances where a pharmacistrequires to earn more income through locum work, employers will try to persuade theiremployee to work as a locum for them, as this is likely to save the employer significant costs ofemploying a genuine self-employed locum. Often the disincentive for the pharmacist is that theymay be forced to work for lower hourly rates than would be available elsewhere, they may notbe able to operate their locum work on a self-employed basis and hence lose their tax advan-tages. PDA has seen examples where employees have been summarily dismissed for breach of


contract because they have been discovered by their employers to be working as locums intheir spare time. Subsequently, their experience has been publicised by the employer to the restof the workforce to act as a deterrent.

The restrictions on share ownership are designed to allow investment in public companies by way ofa portfolio, but to restrict competition with the employer or the involvement in another business venturevicariously, e.g. by owning another company and letting the running be done by another person.

Suggested approach;There are three ways in which this issue can be handled:

a) Negotiate the whole clause out of the employment contract at the time of taking on the job. Alternatively at the time, when the employer is trying to amend the contract so as to implement the clause.

b) Amend the clause, so as to extract any specific wording which could affect your proposed activity e.g. locum work.

c) Secure the employers permission in writing to allow for work as a locum or for the owningof more shares.

6. “During the period of 12 months following the termination of this employment,whether by notice from the employee, employer or otherwise, the employee shall notwithout the express permission of the employer be engaged, employed or otherwiseinvolved in the business of any other pharmacy or competitive commercial undertakingwithin a radius of 50 miles from the employee’s main place of work. The same restric-tions as in paragraph 5 hereof shall apply to the holding of offices in such businessesas detailed herein before.”

Employers will be fearful of their employees being attracted by other nearby employers and tak-ing with them their knowledge of customer databases, professional contacts (with surgeries forinstance), to the detriment of their business. The result is that many are now seeking to includeterms of this type and some are even going to the lengths of seeking to add them to existingcontracts, without offering to pay a proper or worthwhile fee for the amendment.

Suggested approach;Pharmacists are urged to think carefully before they agree to restrictions of this type; especiallyabout the duration and distance which is involved. It would not be unreasonable to reduce therestriction to say; 3 months and/or 1 mile.

10. 11.


It is important to note that enforcement of a contract, especially after an employee has left is acivil matter and has nothing to do with the criminal law. In practice, even if an employee hassigned such a clause and has subsequently broken it, the ex-employer may not contemplategoing to Court to obtain an injunction to enforce the clause or sue for breach of contract, espe-cially if it can show no damage arising from the non-adherence to it.

There is some degree of legal speculation as to whether this type of restrictive clause is actually enforceable in the event that an ex-employee leaves and chooses to work in the proximity. The view of the PDA is that the more onerous the restriction, the more likely it is thatit will be unenforceable if it was challenged in court. The important thing here is how reasonable is the restriction. For example, it would be very difficult for an employer to enforcea five year, fifty mile restriction on a newly qualified pharmacist who works for an employer forsix months in a large city. However, an employer may stand a much greater chance of enforcing a one year, three mile restriction on a pharmacist who has worked for the employerfor ten years.

It is probably for this reason that at the current time, there are no known attempts by theRPSGB to regard such clauses as a ‘matter of professional conduct’, making breach a professional matter. However, as the Society seeks to become ever more involved in regulatoryactivity, it is conceivable that employers may consider a referral to the Society as an activedeterrent and a cheaper alternative than taking the matter to court.

7. Locums and their contractual rights.

The PDA has dealt with many scenarios whereby Locums feel that they have been treatedunfairly by an ‘employer’ to whom they have been loyal, and yet have (in the Locum’s view)been ‘dropped’ unceremoniously when it so suits.

Locums, except under certain circumstances, have no employment rights. They are however protected under the Law of Contract.

A Contract is in place whether made verbally or in writing. The difficulty is that verbal contracts are always open to denial and/or ambiguity.

Contractual terms can therefore be either implied or express.

Terms of a Contract are express when they are actually agreed by the two parties. They caneither be put in writing or verbally agreed.

Terms of a Contract can be implied if:


1.They are dictated by statute.

2.They are determined by the previous behaviours of the two parties (e.g. if the locum has worked for an employer before, or on a long term basis, and has been given short notice to cancel a booking and accepted it, this could now be interpreted as an implied term of the contract).

3.There is a custom and practice or ‘norm’ in the Industry. (e.g. If there is an industry-wide acceptance that three days notice either side to cancel a booking is normal).

The difficulty that the PDA faces when protecting Locums from breaches in contract is that avery high proportion do not have a written ‘Contract for Services’, this allows very little spacefor manoeuver when dealing with the implicit terms rather than the explicit terms whichwould be stated in the written contract.

Previous to the inauguration of the PDA there was only one example of a ‘generic’ contractfor services in circulation and its main purpose was specifically to ensure that the termsagreed between a locum and an engager were those that constituted a self-employed ‘contract for services’ and not an employed ‘contract of service’. This distinction is importantas it can mean that the engager is held responsible by the Inland Revenue for paying thelocums Tax and National Insurance and the locums self-employed tax status is refused.

The NPA ‘Locum Contract for Services’ documentPeriodically, the Inland Revenue (IR) will decide to investigate whether a pharmacist whoclaims to be self-employed is truly self-employed or whether he is in fact an employee. Theensuing IR investigation will look carefully at the exact nature of the relationship and willperform certain tests to establish whether the relationship is that of employment or self-employment. To protect pharmacist locums and those that retain their services fromdisadvantageous assessments (i.e. to ensure that the IR did not state that the individualswere actually employees and that the employers need to pay back tax and back employersNI contributions), the National Pharmaceutical Association (NPA) produced what has becomeknown as a ‘ Contract for Services’ document which is now in widespread use in pharmacywhen an engager books the services of a locum. The problem with this document is that ithas been produced by the NPA whose primary aim is to look after the interests of theemployers and not of locums or employees. Consequently, whilst it satisfies the requirementsof the Inland Revenue, it unfortunately places a burden on the shoulders of the locums, butin the view of the PDA, it does not place a commensurate or balanced burden on theshoulders of the engagers. As a result, locums who are engaged under the terms of the NPAContract for Services are exposed to a number of obligations to the engager, but the engageris not placed under what PDA consider to be reasonable obligations to the locum.

12. 13.



For example the NPA Contract for Services does not require an engager to;

a) Provide a safe working environment for the locum.

b) Provide sufficient properly trained staff to enable the safe provision of pharmaceutical services at the pharmacy.

Neither does the NPA Contract for Services give the locum reasonable protection in theevent that an engager cancels a booking at short notice.

The PDA ‘Locum Contract for Services’ documentThe PDA has produced a ‘Contract for Services’ document which the PDA believesbalances the responsibilities of each party to the other. In the view of the PDA, this makes ita much more equitable document.

For example, the PDA places a requirement on the engager to;

a) Ensure that a safe working environment exists.

b) Ensure that sufficient properly trained staff are available to enable the safe provision of pharmaceutical services at the pharmacy.

c) Ensure that locum bookings cannot be cancelled at short notice without some form of compensation paid to the locum.

The PDA Contract for Services has been approved for use by the Inland Revenue (page 13) and locums are urged to use the PDA Contract for Services in all of their dealingswith engagers.

The PDA Contract for Services can be found on pages 14 to 17 of this booklet and isdesigned to be photocopied and used by locum pharmacists. Ideally, locums should servea signed copy to their engager prior to undertaking work with that engager. In the event thata locum undertakes a lot of work for one particular engager, then one such signed ‘Contractfor Services’ will suffice as long as it is served on the relevant Head Office. Ideally, a freshcontract should be served annually.

Locums working as Limited CompaniesThese days, many locums have established themselves as Limited Companies as thisassists with limiting their personal and taxation liabilities. A ‘Contract for Services’ designedfor locums who work as Limited Companies is also enclosed (pages 18 to 21).

Dear Sir

Pharmacists’ Defence Association (PDA) - Status Determination

I refer to your letter of 5 November 2004 and our subsequent telephone conversations.

You will recall that generally it is not the practice of this department to comment on draft contractsof this nature, however I am able to advise under Code of Practice 10 that locum pharmacistswho work to the express terms and conditions of the proposed contract will be likely to be selfemployed.

You should note however, that this opinion should be regarded as provisional as no firmconclusion can be reached until each contract operates in practice.

If the contract is not operated in practice, nor there are oral or implied conditions, which have not,been presented, this view may alter in individual cases.

You will appreciate that the line being taken with regard to the Pharmacists’ Defence Associationis very much in line with that followed with the standardised form of agreement devised by the National Pharmaceutical Association (NPA) which is commonly utilised for the engagement of Locum Pharmacists- that is to say where NPA agreement is followed, it is likely that thelocum will be self employed- bearing in mind that a written document by itself cannot determineEmployment Status- the oral and implied terms of the engagement and the extent to which thewritten terms are followed also need to be taken into account.

It would be helpful if you would indicate when the PDA contract is intended to be utilised so that Ican draw my colleague’s attention to this so as to minimise any enquiries.

Area Director: Roger Atkinson

Yours faithfully

John BrownStatus Inspector

Birmingham Solihull AreaComplianceCity Centre House30 Union Street Birmingham B2 4AG

Monday to Friday 8.30 to 17.00

FF aa xx 01215356415

www.inlandrevenue.gov.uk

The Pharmacists’ Defence Association,The Old Fire Station69 Albion Street,BirminghamB1 3EA

Date 24 March 2005Our ref 450/7C/Status/068/SZ758437/WJBYour ref mxj/694742-1DOC/7316.20/plm

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ion

of t

he

CO

NT

RA

CT

FO

R S

ER

VIC

ES

FO

R T

HE

PR

OV

ISIO

N O

F L

OC

UM

SE

RV

ICE

S

1. 1.1

2. 2.1

2.2

2.3

3. 3.1

3.2

3.3

3.3.

1

3.3.

2

3.3.

3

3.3.

4

3.3.

5

Prop

rieto

r’s b

usin

ess

othe

r tha

n th

e pr

ovis

ion

of th

e Se

rvic

es a

s a

phar

mac

eutic

al c

hem

ist

and

mat

ters

dire

ctly

rel

ated

to

the

prov

isio

n of

the

Ser

vice

s by

the

Locu

m; a

ndsh

all

prov

ide

his/

her

own

prot

ectiv

e cl

othi

ng a

nd a

ny i

tem

s of

equi

pmen

t co

nsid

ered

by

him

/her

to

be n

eces

sary

for

the

prov

isio

n of

the

Ser

vice

s, w

hich

are

not

alre

ady

avai

labl

e at

the

Pha

rmac

y.P

rop

rieto

r’s

Ob

ligat

ions

The

Pro

prie

tor

agre

es t

o pr

ovid

e a

safe

wor

king

env

ironm

ent

and

suffi

cien

t pr

oper

ly

trai

ned

staf

f as

ar

e re

ason

ably

ne

cess

ary

for

the

prov

isio

n of

an

ac

cept

able

an

d pr

oper

ph

arm

aceu

tical

ser

vice

and

suc

h as

is/a

re n

eces

sary

in o

rder

toco

mpl

y w

ith

all

stat

utor

y,

com

mon

-law

, le

gal

and

ethi

cal

requ

irem

ents

of t

he R

oyal

Pha

rmac

eutic

al S

ocie

ty o

f Gre

at B

ritai

n.Fe

es a

nd P

aym

ent

In r

etur

n fo

r th

e pe

rfor

man

ce b

y th

e Lo

cum

of

the

agre

edS

ervi

ces,

the

Locu

m s

hall

invo

ice

the

Pro

prie

tor f

or th

e gr

oss

Fee

on t

erm

inat

ion

of t

his

agre

emen

t, or

if

the

dura

tion

of t

heag

reem

ent e

xcee

ds o

ne m

onth

, on

a m

onth

ly b

asis

.Th

e P

ropr

ieto

r sh

all

pay

the

Locu

m (

whe

ther

the

Ser

vice

s ar

epe

rform

ed b

y th

e Lo

cum

or

by a

dep

uty)

the

gro

ss F

ee w

ithou

tan

y se

t-off,

ded

uctio

n, c

ount

ercl

aim

or

any

othe

r w

ithho

ldin

g of

mon

ies.

E

arly

Can

cella

tion

of th

e S

ervi

ces

If th

e Lo

cum

is u

nabl

e to

pro

vide

the

Ser

vice

s, h

e/sh

e m

ust g

ive

the

Prop

rieto

r as

muc

h ad

vanc

e no

tice

as is

reas

onab

ly p

ossi

ble.

If th

e Lo

cum

giv

es l

ess

than

14

days

’ no

tice

of c

ance

llatio

n,he

/she

will

atte

mpt

to

arra

nge

for

a su

bstit

ute

phar

mac

ist

topr

ovid

e th

e S

ervi

ces

at n

o ex

tra c

ost

to t

he P

ropr

ieto

r an

d th

eLo

cum

will

be

liabl

e fo

r an

y ad

ditio

nal

cost

s in

curr

ed b

y th

eP

ropr

ieto

r as

a r

esul

t of s

uch

canc

ella

tion.

The

am

ount

pay

able

by th

e Lo

cum

und

er th

is c

laus

e 6.

1, s

hall

neve

r exc

eed

twic

e th

eap

porti

onm

ent o

f the

Fee

for t

he d

ay in

que

stio

n an

d sh

all n

ever

exce

ed th

ree

days

’ app

ortio

nmen

t of t

he F

ee.

If th

e P

ropr

ieto

r can

cels

a b

ooki

ng b

efor

e th

e co

mm

ence

men

t of

a bo

okin

g an

d if

no r

easo

nabl

y su

itabl

e al

tern

ativ

e w

ork

can

befo

und

by e

ither

the

Pro

prie

tor o

r the

Loc

um fo

r the

Loc

um fo

r the

canc

elle

d da

ys,

the

Pro

prie

tor

will

be

liabl

e to

pay

the

Loc

um a

prop

ortio

nate

am

ount

of t

he F

ee a

s fo

llow

s:le

ss t

han

14 d

ays’

not

ice

and

mor

e th

an t

hree

day

s’ n

otic

e, a

n

3.3.

6

4. 4.1

5. 5.1

5.2

6. 6.1

6.2

6.2.

1

SIG

NE

Do

n b

eha

lf o

f th

e P

rop

riet

or

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.

6.2.

2

7. 7.1

8. 8.1

8.2

8.3

8.4

8.41

8.4.

28.

4.3

8.4.

48.

5

amou

nt e

qual

to 5

0% o

f the

Fee

whi

ch w

ould

hav

e no

rmal

ly b

een

due

had

the

canc

ella

tion

not b

een

mad

e; a

ndle

ss th

an th

ree

days

’ not

ice,

100

% o

f the

Fee

, whi

ch w

ould

hav

eno

rmal

ly b

een

due

had

the

canc

ella

tion

not b

een

mad

e.Fo

rce

Maj

eure

If an

eve

nt b

eyon

d th

e Lo

cum

’s r

easo

nabl

e co

ntro

l (in

clud

ing

but

not

limite

d to

a n

atur

al d

isas

ter,

act

of G

od,

civi

l di

sord

er,

strik

es,

trave

l di

srup

tion,

ser

ious

illn

ess

or h

ospi

talis

atio

n of

aLo

cum

or d

eath

of a

clo

se re

lativ

e) o

ccur

s 14

day

s or

less

bef

ore

a bo

okin

g is

due

to

be p

erfo

rmed

, th

e Lo

cum

or

his/

her

repr

esen

tativ

e m

ay c

ance

l any

boo

king

s w

ithou

t hi

m/h

er b

eing

liabl

e to

the

Pro

prie

tor u

nder

cla

use

6 or

oth

erw

ise.

Li

mita

tion

of L

iab

ility

For

the

purp

oses

of

this

cla

use

8 “L

iabi

lity”

mea

ns l

iabi

lity

for

any

and

all

dam

ages

, cl

aim

s, p

roce

edin

gs,

actio

ns,

awar

ds,

expe

nses

, cos

ts a

nd a

ny o

ther

loss

es a

nd/o

r lia

bilit

ies.

The

Locu

m s

hall

have

no

Liab

ility

for d

efec

tive

Serv

ices

whe

re th

ede

fect

has

bee

n ca

used

or c

ontri

bute

d to

dire

ctly

or i

ndire

ctly

by

the

Pro

prie

tor t

o th

e ex

tent

so

cont

ribut

ed.

The

Locu

m s

hall

have

no

Liab

ility

for

any

mat

ters

whi

ch a

reou

tsid

e hi

s/he

r rea

sona

ble

cont

rol.

The

Locu

m s

hall

have

no

Liab

ility

to th

e P

ropr

ieto

r for

any

:co

nseq

uent

ial l

osse

s;

loss

of p

rofit

s an

d/or

dam

age

to g

oodw

ill;

econ

omic

and

/or o

ther

sim

ilar l

osse

s; a

nd/o

rsp

ecia

l dam

ages

and

indi

rect

loss

es.

The

Pro

prie

tor

shal

l be

und

er a

dut

y to

miti

gate

any

los

s,

dam

age,

cos

ts o

r exp

ense

s th

at h

e/sh

e m

ay s

uffe

r.

8.6

8.7

9. 9.1

9.2

9.3

9.4

9.5

pag

e 2

of

2

CO

NT

RA

CT

FO

R S

ER

VIC

ES

FO

R P

RO

VIS

ION

OF

LO

CU

M S

ER

VIC

ES

web

site

ww

w.t

he-p

da.

org

or

tele

pho

ne 0

121

694

7000

© T

he P

harm

acis

ts’

Def

ence

Ass

oci

atio

n 20

05

The

Locu

m’s

tota

l Lia

bilit

y to

the

Pro

prie

tor

shal

l not

exc

eed

the

Fee.

Not

hing

in t

his

Con

tract

sha

ll ex

clud

e or

lim

it th

e Li

abili

ty o

f th

eLo

cum

for

dea

th o

r pe

rson

al i

njur

y du

e to

his

/her

neg

ligen

ce

or a

ny L

iabi

lity

whi

ch i

s du

e to

the

Loc

um’s

fra

ud o

r an

y ot

her

liabi

lity

whi

ch i

t is

not

per

mitt

ed t

o ex

clud

e or

lim

it as

a

mat

ter o

f law

.G

ener

alN

othi

ng in

this

agr

eem

ent s

hall

rest

rict t

he r

ight

of t

he L

ocum

topr

ovid

e S

ervi

ces

of th

e sa

me

kind

to o

ther

s, o

utsi

de th

e pe

riods

of ti

me

durin

g w

hich

the

Locu

m h

as a

gree

d to

pro

vide

Ser

vice

s at

the

Pha

rmac

y.Th

e Lo

cum

is

enga

ged

to p

erfo

rm t

he S

ervi

ces

as a

sel

f-em

ploy

ed p

erso

n.

The

Locu

m s

hall

be r

espo

nsib

le f

or a

nd w

ill a

ccou

nt t

o th

ere

leva

nt a

utho

rity

for i

ncom

e ta

x lia

bilit

ies

and

natio

nal i

nsur

ance

or s

imila

r co

ntrib

utio

ns i

n re

spec

t of

the

Fee

and

any

oth

erpa

ymen

ts m

ade

to th

e Lo

cum

und

er th

is a

gree

men

t.U

pon

the

deat

h of

the

Locu

m, t

he P

ropr

ieto

r sha

ll re

mai

n lia

ble

toth

e Lo

cum

’s e

stat

e fo

r al

l sum

s du

e in

res

pect

of s

uch

dutie

s or

serv

ices

whi

ch h

ave

alre

ady

been

per

form

ed.

This

agr

eem

ent

is g

over

ned

by a

nd i

nter

pret

ed i

n ac

cord

ance

with

Eng

lish

law

and

the

parti

es a

gree

to s

ubm

it to

the

excl

usiv

eju

risdi

ctio

n of

the

Eng

lish

Cou

rt.

16. 17.

pag

e 1

of

2

Bas

is o

f A

gre

emen

tTh

is a

gree

men

t bet

wee

n th

e Pa

rties

sha

ll be

dee

med

to b

e th

een

tire

agre

emen

t bet

wee

n th

e P

ropr

ieto

r an

d th

e C

PLS

.D

urat

ion

If th

e ag

reem

ent i

s a

rolli

ng a

gree

men

t and

can

cella

tion

resu

ltsin

exi

stin

g b

ooki

ngs

bei

ng c

ance

lled

the

n th

e p

rovi

sion

s of

clau

se 6

will

app

ly.

The

Pro

prie

tor

may

im

med

iate

ly t

erm

inat

e th

is a

gre

emen

t w

ithou

t no

tice

if th

e C

PLS

is

in b

reac

h of

cla

use

3.2

and

the

Na

me

of

Ph

arm

acy

……

……

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he

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pri

eto

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me

of

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mp

an

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rovi

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g C

PLS

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(‘T

he

CP

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.

Du

rati

on

:F

ixe

d

Term

fr

om

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to

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llin

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erm

fro

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… u

nti

l te

rmin

ate

d b

y

eith

er p

art

y g

ivin

g t

wo

wee

k’s

no

tice

in

wri

tin

g.

Pro

pri

eto

r’s

Pre

mis

es (

“Ph

arm

acy

”):

Fee

:£

……

……

...…

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per

ho

ur/

per

da

y

CO

NT

RA

CT

FO

R S

ER

VIC

ES

, W

HE

RE

BY

IT

IS

AG

RE

ED

AS

FO

LLO

WS

:

CP

LS m

ay im

med

iate

ly te

rmin

ate

this

agr

eem

ent w

ithou

t not

ice

if th

e P

ropr

ieto

r is

in b

reac

h of

cla

use

4.1.

On

term

inat

ion

of t

his

agre

emen

t al

l mon

ies

due

and

owin

g to

the

CP

LS s

hall

beco

me

due

and

paya

ble.

Ser

vice

s an

d L

ocu

m’s

Ob

ligat

ions

Dur

ing

the

subs

iste

nce

of t

his

agre

emen

t th

e P

ropr

ieto

r sh

all

rece

ive

from

the

CP

LS a

nd t

he C

PLS

sha

ll p

rovi

de

to t

heP

ropr

ieto

r se

rvic

es o

f a

qua

lifie

d,

regi

ster

ed P

harm

aceu

tical

Che

mis

t at t

he P

harm

acy

(the

“S

ervi

ces”

).Th

e C

PLS

: w

arra

nts

to t

he P

ropr

ieto

r th

at t

hose

who

are

to

prov

ide

the

serv

ices

are

regi

ster

ed P

harm

aceu

tical

Che

mis

t(s)

and

that

it is

awar

e of

the

Pro

prie

tor’s

sta

tuto

ry a

nd p

rofe

ssio

nal o

blig

atio

nsas

the

Pro

prie

tor

of a

pha

rmac

y;

shal

l [in

its

disc

retio

n] e

nsur

e th

at it

s P

harm

aceu

tical

Che

mis

t(s)

spen

d(s)

suc

h pe

riods

at

the

Pha

rmac

y as

will

ens

ure

that

the

stat

utor

y an

d pr

ofes

sion

al o

blig

atio

ns o

f the

Pro

prie

tor

refe

rred

to in

cla

use

3.2.

1 ar

e co

mpl

ied

with

;sh

all

ensu

re t

hat

its P

harm

aceu

tical

Che

mis

t(s)

exe

rcis

e al

lpr

ofes

sion

al s

kill

and

dilig

ence

in th

e re

nder

ing

of th

e S

ervi

ces

but

sha

ll no

t b

e su

bje

ct t

o th

e d

irect

ion

or c

ontr

ol o

f th

eP

ropr

ieto

r as

to th

e m

anne

r in

whi

ch h

e/sh

e sh

all p

erfo

rm s

uch

Ser

vice

s;w

here

CP

LS h

as p

rocu

red

the

serv

ices

of

a de

puty

to

perfo

rmth

e S

ervi

ces,

will

use

its

reas

onab

le e

ndea

vour

s to

ens

ure

that

such

dep

uty

shal

l exe

rcis

e al

l pro

fess

iona

l ski

ll an

d di

ligen

ce in

the

rend

erin

g of

the

Ser

vice

s;sh

all

ensu

re t

hat

its e

mp

loye

e(s)

ren

der

to

the

Pro

prie

tor,

Ser

vice

s as

a P

harm

aceu

tical

Che

mis

t an

d m

atte

rs d

irect

lyre

late

d to

the

prov

isio

n of

suc

h S

ervi

ces;

and

shal

l p

rovi

de

its o

wn

pro

tect

ive

clot

hing

and

sha

ll fu

rthe

r

CO

NT

RA

CT

FO

R T

HE

PR

OV

ISIO

N O

F L

OC

UM

SE

RV

ICE

S

BY

A C

OM

PA

NY

PR

OV

IDIN

G L

OC

UM

SE

RV

ICE

S (

CP

LS)

1. 1.1

2. 2.1

2.2

2.3

3. 3.1

3.2

3.2.

1

3.2.

2

3.2.

3

3.2.

4

3.2.

5

3.2.

6

prov

ide

its e

mpl

oyee

(s) w

ith a

ny it

ems

of e

quip

men

t con

side

red

by th

e C

PLS

to b

e ne

cess

ary

for

the

rend

erin

g of

the

Ser

vice

s,w

hich

are

not

ava

ilabl

e at

the

Pha

rmac

yP

rop

riet

or’

s O

blig

atio

nsTh

e P

ropr

ieto

r ag

rees

to

prov

ide

a sa

fe w

orki

ng e

nviro

nmen

tan

d

suffi

cien

t p

rop

erly

tr

aine

d

staf

f as

ar

e re

ason

ably

ne

cess

ary

for

the

pro

visi

on o

f an

acc

epta

ble

and

pro

per

ph

arm

aceu

tical

ser

vice

and

suc

h as

is/a

re n

eces

sary

in o

rder

toco

mp

ly

with

al

l st

atut

ory,

co

mm

on-la

w,

leg

al

and

et

hica

l

req

uire

men

ts o

f th

e R

oyal

Pha

rmac

eutic

al S

ocie

ty o

f G

reat

Brit

ain.

The

Pro

prie

tor

shal

l p

erm

it th

e C

PLS

to

sub

-con

trac

t th

ese

rvic

es w

hich

it

is c

ontr

acte

d he

rein

to

prov

ide,

to

anot

her

Pha

rmac

ist

who

will

act

as

his

or h

er D

eput

y; t

his

clau

se s

hall

be s

ubje

ct t

o th

e P

ropr

ieto

r’s r

ight

, fo

r re

ason

able

cau

se,

tore

fuse

to a

ccep

t the

ser

vice

s of

a p

artic

ular

Pha

rmac

ist D

eput

y.FF

eeee

ss aa

nndd

PPaa

yymmee

nntt

In r

etur

n fo

r th

e p

erfo

rman

ce b

y th

e C

PLS

of

the

agre

edS

ervi

ces,

the

Pro

prie

tor

shal

l p

ay t

o th

e C

PLS

(w

heth

er t

heS

ervi

ces

are

perfo

rmed

by

the

CP

LS o

r by

a d

eput

y) th

e gr

oss

Fee

with

out

any

set-

off,

dedu

ctio

n, c

ount

ercl

aim

or

any

othe

rw

ithho

ldin

g of

mon

ies.

The

Pro

prie

tor

shal

l pay

the

Fees

due

to th

e C

PLS

on

or b

efor

eth

e la

st w

orki

ng d

ay o

f eac

h m

onth

, or

earli

er if

so

agre

ed.

Ear

ly C

ance

llatio

n o

f th

e S

ervi

ces

If th

e C

PLS

is u

nabl

e to

pro

vide

the

Ser

vice

s, it

mus

t gi

ve a

sm

uch

adva

nce

notic

e to

th

e P

rop

rieto

r as

is

re

ason

ably

pos

sib

le.

If

the

CP

LS g

ives

les

s th

an 1

4 d

ays’

not

ice

ofca

ncel

latio

n, it

will

atte

mpt

to a

rran

ge a

sub

stitu

te p

harm

acis

t to

prov

ide

the

Ser

vice

s at

no

extra

cos

t to

the

Pro

prie

tor

and

the

CP

LS w

ill b

e lia

ble

for

any

add

ition

al c

osts

inc

urre

d b

y th

eP

ropr

ieto

r as

a re

sult

of s

uch

canc

ella

tion.

The

am

ount

pay

able

in r

espe

ct o

f cos

ts p

ayab

le b

y th

e C

PLS

und

er th

is c

laus

e 6.

1,sh

all n

ever

exc

eed

[tw

ice]

the

appo

rtion

men

t of t

he F

ee fo

r th

ed

ay

in

que

stio

n an

d

shal

l ne

ver

exce

ed

[thr

ee]

day

s’ap

porti

onm

ent o

f the

Fee

. If

the

Pro

prie

tor

canc

els

a bo

okin

g pr

ior

to th

e co

mm

ence

men

tda

te f

or t

he p

erfo

rman

ce o

f th

e S

ervi

ces

and

if no

rea

sona

bly

suita

ble

alte

rnat

ive

wor

k ca

n be

foun

d by

eith

er th

e P

ropr

ieto

r or

the

CP

LS fo

r its

em

ploy

ee(s

) for

the

day(

s) in

que

stio

n, th

en th

e

4. 4.1

4.2

5. 5.1

5.2

6. 6.1

6.2

18. 19.

6.2.

1

6.2.

2

7. 7.1

8. 8.1

8.2

8.3

8.4

Pro

prie

tor w

ill b

e lia

ble

to p

ay th

e C

PLS

a p

ropo

rtion

ate

amou

ntof

the

Fee

as fo

llow

s:le

ss th

an 1

4 da

ys’ n

otic

e an

d m

ore

than

thre

e da

ys’ n

otic

e, a

nam

ount

equ

al t

o 50

% o

f th

e Fe

e w

hich

wou

ld h

ave

norm

ally

been

due

had

the

canc

ella

tion

not b

een

mad

e.le

ss th

an th

ree

days

’ not

ice,

100

% o

f the

Fee

whi

ch w

ould

hav

eno

rmal

ly b

een

due

had

the

canc

ella

tion

not b

een

mad

e.Fo

rce

Maj

eure

In th

e ev

ent o

f an

even

t bey

ond

the

CP

LS’s

rea

sona

ble

cont

rol

(incl

udin

g bu

t no

t lim

ited

to a

nat

ural

dis

aste

r, ac

t of

God

, civ

ild

isor

der

, st

rikes

, tr

avel

d

isru

ptio

n,

serio

us

illne

ss

orho

spita

lisat

ion

of t

he C

PLS

’s e

mpl

oyee

(s)

or d

eath

of

a cl

ose

rela

tive

of t

he e

mpl

oyee

(s))

with

in a

per

iod

of 1

4 da

ys o

r le

ssb

efor

e a

boo

king

is

due

to

be

per

form

ed,

the

CP

LS o

r its

repr

esen

tativ

e m

ay c

ance

l any

boo

king

s w

ithou

t bei

ng li

able

toth

e P

ropr

ieto

r un

der

clau

se 6

or

othe

rwis

e.

Lim

itatio

n o

f Li

abili

tyFo

r th

e pu

rpos

es o

f th

is c

laus

e 8

“Lia

bilit

y” m

eans

liab

ility

for

any

and

all

dam

ages

, cl

aim

s, p

roce

edin

gs,

actio

ns,

awar

ds,

expe

nses

, cos

ts a

nd a

ny o

ther

loss

es a

nd/o

r lia

bilit

ies.

The

CP

LS a

nd/o

r its

em

plo

yee(

s) s

hall

have

no

Liab

ility

for

def

ectiv

e S

ervi

ces

whe

re t

he d

efec

t ha

s b

een

caus

ed o

rco

ntrib

uted

to d

irect

ly o

r ind

irect

ly b

y th

e P

ropr

ieto

r to

the

exte

ntso

con

tribu

ted.

The

CP

LS a

nd/o

r its

em

ploy

ee(s

) sh

all h

ave

no L

iabi

lity

for

any

mat

ters

whi

ch a

re o

utsi

de th

eir

reas

onab

le c

ontro

l.Th

e C

PLS

and

/or

its e

mpl

oyee

(s)

shal

l hav

e no

Lia

bilit

y to

the

Pro

prie

tor

for

any:

cons

eque

ntia

l los

ses;

lo

ss o

f pro

fits

and/

or d

amag

e to

goo

dwill

; ec

onom

ic a

nd/o

r ot

her

sim

ilar

loss

es; a

nd/o

rsp

ecia

l dam

ages

and

indi

rect

loss

es.

The

Pro

prie

tor

shal

l b

e un

der

a d

uty

to m

itig

ate

any

loss

,da

mag

e, c

osts

or

expe

nses

that

he/

she

may

suf

fer.

Not

hing

in th

is C

ontra

ct s

hall

excl

ude

or li

mit

the

Liab

ility

of t

heC

PLS

for

dea

th o

r pe

rson

al i

njur

y du

e to

neg

ligen

ce,

or a

nyLi

abili

ty w

hich

is d

ue t

o th

e C

PLS

’s f

raud

, or

any

oth

er li

abili

tyw

hich

it is

not

per

mitt

ed to

exc

lude

or

limit

as a

mat

ter

of la

w.

Gen

eral

Not

hing

in th

is a

gree

men

t sha

ll re

stric

t the

rig

ht o

f the

CP

LS to

prov

ide

Ser

vice

s of

the

sam

e ki

nd to

oth

ers,

out

side

the

perio

dsof

tim

e du

ring

whi

ch th

e C

PLS

has

agr

eed

that

its

empl

oyee

(s)

will

pro

vide

Ser

vice

s at

the

Pha

rmac

y.Th

e C

PLS

is

a bo

dy c

orpo

rate

and

con

trac

ts t

o pe

rform

the

Ser

vice

s in

this

cap

acity

. Th

e C

PLS

sha

ll b

e re

spon

sib

le f

or a

nd w

ill a

ccou

nt t

o th

ere

leva

nt

auth

oriti

es

for

inco

me

tax

liab

ilitie

s an

d

natio

nal

insu

ranc

e or

sim

ilar

cont

ribut

ions

in r

espe

ct o

f its

em

ploy

ees.

8.4.

18.

4.2

8.4.

38.

4.4

8.5

8.6

9. 9.1

9.2

9.3 SIG

NE

Do

n b

eha

lf o

f th

e P

rop

riet

or

……

…..

....

....

....

....

....

....

……

……

……

……

……

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……

.

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TE

Dth

is …

....

....

.…

da

y o

f …

…..

....

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……

……

20

..…

....

.

SIG

NE

Do

n b

eha

lf o

f th

e C

PLS

……

…..

....

....

....

....

....

....

……

……

……

……

……

……

……

……

……

.

DA

TE

Dth

is …

....

....

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da

y o

f …

…..

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……

……

20

..…

....

.

pag

e 2

of

2

web

site

ww

w.t

he-p

da.

org

or

tele

pho

ne 0

121

694

7000

© T

he P

harm

acis

ts’

Def

ence

Ass

oci

atio

n 20

05

CO

NT

RA

CT

FO

R T

HE

PR

OV

ISIO

N O

F L

OC

UM

SE

RV

ICE

S

BY

A C

OM

PA

NY

PR

OV

IDIN

G L

OC

UM

SE

RV

ICE

S (

CP

LS

)

Upo

n th

e de

ath

of (

the)

CP

LS e

mpl

oyee

(s)

who

was

/wer

e to

pro

vid

e th

e S

ervi

ces,

the

CP

LS s

hall

fort

hwith

cea

se t

o b

ere

spon

sibl

e fo

r th

e d

isch

arge

of

any

/ al

l d

utie

s or

ser

vice

sag

reed

her

ein,

but

the

Pro

prie

tor s

hall

rem

ain

liabl

e to

the

CP

LSfo

r al

l su

ms

due

in r

espe

ct o

f su

ch d

utie

s or

ser

vice

s w

hich

have

alre

ady

been

per

form

ed.

This

agr

eem

ent

is g

over

ned

by a

nd in

terp

rete

d in

acc

orda

nce

with

Eng

lish

law

and

the

parti

es a

gree

to s

ubm

it to

the

excl

usiv

eju

risdi

ctio

n of

the

Eng

lish

Cou

rts.

9.4

9.5

20. 21.

22. 23.



8. “The employee shall keep confidential all such information as shall come into his / herknowledge whilst employed by the company and shall not divulge this to any unauthorisedperson, firm or body without the express permission of the employer. On the cessation of thisemployment the restrictions imposed by this paragraph shall endure indefinitely and theemployee shall not seek to use such information to solicit or otherwise obtain for another, thebusiness of the employers customers.”

A clause such as this is in most contracts and it is reasonable for it to be there. However, if theterms are unusually restrictive after the employment has ceased, employees may wish to objectin advance of signing a contract. Once again, as in clause 6, enforcement is the problem for theex-employer seeking to rely on the clause.

9. “The employee will be responsible for ensuring that the company and all employeesworking within his/her control comply with all professional, statutory and other legalrequirements.”

Pharmacists should be concerned and suspicious of these types of clauses; they are often anattempt by the Superintendent Pharmacist and/or the employing company to avoid or shiftsome of the liability for various matters, which are more properly their responsibility. Seniormanagement pharmacists who genuinely have the ability to control the overall environment ofthe pharmacy with little or no restriction from the employer (e.g. staffing levels, training pro-grammes, workload, etc.) may think that this clause is reasonable. Indeed they may have theknowledge and ability to deal with the responsibilities which this type of clause places uponthem. However, as has been seen by the PDA, there is often no real prospect that a pharmacistwill ever have the requisite level of control over the pharmacy environment because that factoris essentially in the hands of others. In such cases this type of clause has no place in theiremployment contract.

Suggested approach;Such clauses should be avoided completely. However, if the pharmacist is given a genuineauthority to act and control the working environment, then the pharmacist should seek a writtenstatement of exactly which legal and professional regulations they are required to be responsi-ble for, rather than just agree to an ‘ unwritten, open-ended’ list. It is crucial that a pharmacist isfully aware of the exact extent of the legal and professional requirements being placed uponthem and for which they are accepting responsibility.

10. “The employee shall provide an emergency dispensing service out-of-hours for NHSprescriptions marked ‘urgent’ and shall also attend at all alarm call-outs.”

Terms such as the one above can, unless subject to defined restrictions, effectively be a prohibition on a pharmacists social life. Many pharmacists agree to these clauses, withoutrealising that they may be unable to go away at a weekend or even to go out any distance in theevening. Moreover, many pharmacists agree to such clauses without thinking through the prac-tical implications of being required to attend their pharmacy at night because there has been abreak-in and where there is no guarantee that the police will be present.

Suggested approach;If agreeing to such terms, then at the very least pharmacists are urged to make sure that they;

a) Negotiate extra pay to compensate for the restrictions on their social life.

b) Seek amendments which ensure that a deputy pharmacist for the urgent prescriptions can be found.

c) Seek to include permission to appoint an alternative key-holding member of staff for alarm call-outs.

11. “Training of staff; the employee shall ensure that all staff are trained to the requiredstandard for their particular job and shall be responsible for any failures in such training.”

This clause is similar to clause 8 and similar comments apply. The effect of these types ofclauses is that if a catastrophic failure occurs then it could result in the pharmacist taking thebrunt of the responsibility and not the company or its superintendent. This can only be justifiableif the pharmacist has been given relatively unhindered scope for action and the physical/finan-cial support necessary to ensure that the pharmacist can truly deliver. Experienced seniormanagers will probably feel quite comfortable however, they are urged to seek specific defini-tions on limits. Less experienced pharmacists are urged to secure a detailed job-descriptionwhich specifies exactly the training to be given to each staff member and which provides formanagement support from the employer.

12. “The employee shall be responsible for the endorsement and submission of all pre-scriptions to the pricing authority on time and shall ensure that all prescriptions areendorsed according to the employer’s instructions; the employee shall be responsible forall claims submitted and any errors and shall indemnify the employer in respect thereof.”

24. 25.



Pharmacists should be very wary indeed of ever signing a contract which contains this clause.The effect of this clause is that it may mean that the employer can claim any losses from theemployee. More importantly, if the employers instructions on script endorsement are dubious,but are nevertheless followed, then this could lead to the employed pharmacist having to takeprofessional and criminal liability for ‘endorsing fraud’.

Suggested approach;Terms which make the pharmacist responsible for all claims and any errors and which requirethe pharmacist to indemnify the employer in respect thereof should never be agreed to.

13. Terms aimed at avoiding the liabilities of employment altogether

Some employers will offer ‘employment’, but then deliberately use wording and terminology intheir contracts which set out to avoid the responsibilities that an employer is required to have.Consequently, when an employment issue arises, they can argue that the pharmacist wasnever an employee in the first place. The tell – tale sign to look out for is when the documentthat is deemed to be an employment contract is not given a heading which includes the word‘employment’. Instead different headings are used, e.g. “Manager’s Contract”, “Pharmacist’sContract”, “Terms of the Pharmacist’s Service”.

Numerous pharmacists have signed such agreements, not suspecting them to be in any wayproblematic. The simple rule is that if the pharmacist is to be employed, then the headingshould state “employment contract” and the words “employer” and “employee” should beused in the contract.

14. “The employee will be required to be responsible for the payment of his/her ownNational Insurance and Income Tax contributions, during the time of his/her employment.”

One recent situation dealt with by the PDA saw a contract which was headed “contract for self-employed employment” and then went-on to include the above clause. The ensuing dispute has nowended up in court, but the fact that the ‘employee’ pharmacist agreed to it has made the case muchmore difficult to prosecute on behalf of the employee pharmacist.

15. “The Pharmacist / Manager will at all times maintain his/her own contract of insur-ance, covering professional and other liabilities arising out of all of his / her actions underthis contract. The Pharmacist / Manager will indemnify the Company against all and anylosses, howsoever arising, whilst the business is under his/her control, including failure tohave such insurance in force.”

Employers bear what the law calls ‘vicarious liability’ for all the actions of their employees. Thismeans that if (for example) someone is harmed by the actions, errors or omissions of anemployee pharmacist, then it is always the employer that takes primary responsibility. What mayhappen next, and this is already happening in pharmacy, is that the employer may seek redressfrom the employee through disciplinary procedures, or the employers insurer may seek to pur-sue the employee for a return of the monies it used to settle a claim for compensation from apatient. Contract terms such as this one (written in this way) will have the effect of allowing theemployer to attempt to side-step claims made against his pharmacy by simply telling thepatient (or other third party) that the responsibility for the error is that of the pharmacist and it isthe pharmacist that should therefore be pursued – not the employer. This is especially thecase if the contract does not include the word employee.

The effect of a clause that requires the pharmacist to indemnify the employer for all / any lossesoccurring whilst the pharmacist is in control could be catastrophic for the pharmacist. It couldmean that an injury to a patient that had nothing whatsoever to do with the pharmacist (e.gdefective flooring leading to a fall) could still make the pharmacist personally liable. Such aclause has also been seen in some contracts issued to Primary Care Pharmacists where theyare (probably inadvertently) being asked to take responsibility for any errors that occur in the GPsurgery where they provide their services – to include those made by surgery staff and GP’s.

Suggested approach;If the employer seeks to include a requirement as to the employee carrying their own insurance,then the pharmacist should seek to ensure that the word “employee” appears in the relevantclause (unless of course the relationship is truly that of self-employment).

The requirement to indemnify the employer (the company, the surgery or the PCT) against alllosses, etc. should never be agreed to under any circumstances.

16. ‘TUPE’. Transfer of Undertakings (Protection of Employment) Regulations 1981.

If employed by an existing employer on agreed contract terms, then those terms (unless thecontract provides otherwise) cannot be changed or amended without the agreement of theemployee. However, a very common situation in pharmacy is the company ‘takeover’ where asmall pharmacy or small chain is acquired by a larger multiple. Typically, a few weeks after thetakeover, the training coordinator / area manager / ‘HR person’ arrives to announce that theyhave issued new contracts to bring everyone into line and, so as to keep all the paperworkstraight, they will want it signed so that they can take it away with them when they leave later onthat afternoon. The discussion generally leads the pharmacist to believe that this is merely aroutine formality paperwork exercise and nothing to be concerned about.

26. 27.



However, by virtue of what is known as ‘TUPE’ [the Transfer of Undertakings (Protection ofEmployment) Regulations 1981], employees’ original contract terms and rights are maintained,despite business transfers to new owners. In short, employees of a business which is takenover by another, transfer to the new employer on the same terms and conditions as theyenjoyed with the old employer. In addition, the employment is deemed to have commenced atthe time that the employment with the old employer originally started. This means that thelength of service for employees is protected and preserved as are the original terms and condi-tions. However, the new owners may wish to include different, possibly less advantageousterms and conditions, such as a right to require different hours to be worked, a right to transferthe employee to another branch, dictate alternative holiday dates, change working practicesand existing agreements, restrict the employee’s right to work for other employers outside ofemployment times, etc., etc. A simple way of achieving these changes is for the employer toput the new or varied terms and conditions in the ‘new contracts’, add some small ‘benefit’ forthe employee (to provide for what lawyer’s call ‘fresh consideration’ and thus to make the con-tract legally binding) then to present them to the existing staff. Often this is done in such a wayas to ensure that the employee does not suspect that anything significant has occurred, usuallyduring the first visit to the newly acquired pharmacy. Very often the staff are nervous of the newemployer and the last thing they want to do is to ‘upset’ relations at the first encounter. Theeffect of being co-operative and complying with this requirement can prove to be (and often is)disastrous for the employee, when the new area manager turns up later and starts to makerequests/ demands that would have been impossible under the old contract.

The lesson to employees in take-over situations is that if they sign their new contract withoutcareful consideration then they may get into disputes with their new employer about whetherthey are bound by the new terms. This can be unpleasant and costly.

Another issue for employees to bear in mind is that employers are under an obligation to notifyemployees about a proposed transfer or sale of the business before the transfer takes place.There is also an obligation on employers to consult with employees about any measures thenew owner is proposing to take in relation to their employment. If the employer doesn’t notifyemployees about a transfer/sale or doesn’t consult with them, employees could be entitled todamages in an Employment Tribunal of up to 90 days pay as compensation for the employersfailure to comply with his obligations.

Suggested approach;Never sign something as important as a contract of employment in a hurry because somebodywants you to sign it so that they can take it with them when they leave.

Pharmacist employees are urged to take time to read any new contract, consult the old one andestablish the differences clause by clause. Using this booklet will go a long way in helping phar-macists establish whether there are any problems. If issues do arise, then pharmacists areurged to take legal advice or contact the PDA and simply inform the new employer that whilstthey have read the proposed contract terms, they would rather not sign them, because theyprefer to rely on those which transferred automatically from their previous employer, under‘TUPE’. It is natural for pharmacists to want to avoid confrontation, but PDA has dealt withcases where tackling the problem straight away, would have avoided many months of tortuouscourt and tribunal arguments which ultimately ended up in the complete breakdown of therelationship between the employer and employee.

17. Working times, Days off and Holidays

"The employee will be required to work a total of forty hours per week, notincluding rest breaks. The business hours of the Pharmacy are 09:00 - 18:00Monday to Saturday and the employee shall be entitled to one whole day perweek on which day he (she) will not work. On that day, he (she) will be respon-sible for the engagement of a locum pharmacist to deputise for him (her). In theevent that the employee is not able to arrange for a locum pharmacist to attendon any particular day, then he (she) shall be responsible for attending at thePharmacy and providing his (her) services as a pharmacist to ensure the conti-nuity of provision of pharmaceutical services."

AND/OR

"The employee shall be entitled to five weeks annual leave in any one year.The employee shall be responsible for obtaining a locum pharmacist todeputise for him (her) during all periods of annual leave and the employer willpay the costs (at no more than 'standard' rates of pay). In the event of afailure of any such deputy to attend at the pharmacy, the employee will bepersonally responsible for ensuring that the continuity of provision ofpharmaceutical services is maintained."

The effects of these clauses can have a dramatic effect on the employee pharma-cist. Effectively they make the employee responsible for arranging pharmacist coverif they want a day off or a holiday. In the event that they cannot find a pharmacist,they would not be able to take time off. This can become a big issue particularly inareas of the country where locums are difficult to locate and also during holidaytimes when locums are scarce. The problem is further exacerbated if there are con-

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straints on the hourly rates that an employee is authorised to agree with a locumand also if the employer refuses to allow the employee to use the services of alocum agency to assist with finding cover. Additionally, some employers have acompany policy on locum hourly rates and travelling expenses which places thembelow national norms and this places the employee in a particularly difficult situa-tion. In the experience of PDA, some pharmacists who find themselves in thissituation end up paying agency fees, travelling expenses and top ups on hourlyrates themselves, just so that they can secure their holiday cover.

In other situations, pharmacists have been disciplined by their employers, whenthey have refused to return to work in the event that the locum has failed to arrive.

It is the view of the PDA, that it is entirely unreasonable for an employer to attachsuch onerous conditions on an employee. In the worst instances, the effect of theseclauses mean that the employer is breaching the Working Time Regulations 1998 byfailing to allow employees the opportunity to take their statutory entitlement to paidholidays. Additionally there is also the possibility that the pharmacist will be breach-ing the Pharmacy Code of Ethics by working in a way that causes fatigue andtherefore constituting a risk to the public.

There are further problems for employees with these clauses; in the event that apharmacy ends up with no pharmacist cover due to the failure of a deputy, then thelocal Primary Care Organisation (PCT or Health Board) may decide to penalise thecontractor. This could result in a written warning or even a financial penalty, more-over, the pharmacy could also be reported to the RPSGB, which could then result inan RPSGB investigation. In such circumstances, it is likely that the employee wouldbe drawn directly into such investigations. Ultimately, there is also the possibility ofthe employee being called to employment disciplinary meetings by the employer.

Suggested approach;Ideally these types of clauses should be avoided altogether by employees, as theyreally can have a serious impact on them. This is particularly the case if theemployee works in an area of the country where locums are scarce. It is much moreappropriate for the employer to take the responsibility for pharmacy cover in hispharmacy business. In the event that an employee cannot succeed in deleting sec-tions that require the employee to take responsibility for finding the locum, thenways to reduce the full extent of the l iabil ity could be found. For example, theemployee may insert a sentence which ensures that if a week before the proposedday (week) off, the employee has stil l not managed to secure the services of alocum, then it becomes the responsibility of the employer to make further arrange-ments. Alternatively, the employee may delete the sentence which restricts theemployee to the employer`s preferred hourly rate of pay and the employer`s pre-ferred travelling expense arrangement.

18. Retention of Services after Registration as a Pharmacist (found in contractsgiven to Pre-reg’s)

"This employment is subject to the express condition that upon successfullycompleting the pre-registration training year and registering as a Pharma-ceutical Chemist, the employee wil l be required to continue to acceptemployment by the Company in that capacity, if offered to him (her) by theCompany for a period of at least one year after qualifying. Under the terms ofthis clause, the Company may require the employee to accept employment inany one or a number of its branches, either as a relief manager or managerand at any location within reasonable travelling distance of the employee'spresent home. Furthermore, in the event that the company is unable to offeremployment in such capacity within a reasonable travelling distance of theemployee's home, then the company will (at its discretion) either pay the rea-sonable travelling and accommodation expenses of working away from home,or require the employee to re-locate to another area within the United King-dom, providing that i t shal l meet the reasonable relocation expensesinvolved."

"In the event that the employee shall refuse any employment and / or travel -ling and/ or relocation offered under this clause, or shall seek to take-up ortake-up any offer of employment elsewhere, then the employee shall bedeemed in breach of this contract and the Company shall be enti t led torecover from the employee the full costs of the pre-registration training yearor the sum of £10,000.00 (whichever is the higher figure) from the employeeand the employee hereby expressly authorises the Company to make deduc-tion of such sum from remuneration due to him (her)."

This clause significantly restricts the options for a Pre-reg at the end of their Pre-reg year and gives the employer complete flexibility and control. It means that thenewly qualified can be required by the employer to work anywhere in the UK uponqualifying, even though they may not wish to relocate or they may not wish towork in the particular pharmacy being offered by the employer. The clause usesphrases like ‘reasonable’, which are ambiguous and are a recipe for conflict anddisagreement as what is deemed reasonable by the employer, may not be deemedreasonable by the employee. Additionally, there is no future salary guarantee andthis means that the employer would be able to offer the newly qualified pharmacista salary that is lower than the usual newly qualifying rate.

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Worst of all, in the event that a newly qualified decides not to accept a particularposition, or decides to leave within 12 months of qualifying, then the employerwould be able to recover costs of training. In such instances, it is not difficult toimagine that the employee would consider that it would simply be prohibitivelyexpensive for them to contemplate leaving.

Suggested approach;Ideally, such clauses should be avoided altogether and any pharmacy graduatecontemplating working for an employer who has such clauses contained in theirproposed contract of employment should consider striking out such a clause fromthe proposed contract prior to signing or lessening the burden of such a clause byamending it accordingly. For example, the prospective employee may consideramending the section that entitles the employer to require the employee to workaway from their immediate area after qualifying. This entitlement could be limitedto within a radius of say 10 miles. Alternatively, the prospective employee mayamend the section that describes a twelve month post qualifying commitment,and reduce it to say three months only. Should the employer resist such entirelyreasonable changes, then the prospective employee should think seriously aboutconsidering looking at other employment options.

19. Taking a break but being required to stay on the premises.

"The Pharmacist will be entitled to and shall be obliged to take an unpaid rest break ofone hour between the hours of 12:00 and 14:00 during each 9-hour working day. Duringthis time the pharmacist will be required to remain on the company's premises and incharge of the pharmacy, but shall not be required to work."

It is important to recognise that a 'break' is a total mental and physical break withno 'ties'. The employee must be free from constraints during the hour in question,including freedom to leave the premises, meet with friends, go shopping etc. If theemployer tries to place the pharmacist in a position where their services, eithermental or physical, may be called upon, then the pharmacist is NOT having abreak and is therefore entitled to be paid. Under such circumstances, it does not

qualify as a break, within the meaning of the Working Time Directive / Regulationsand not a break for the purposes of satisfying any professional requirement thatthe RPSGB may have (now or in the future) for a pharmacist to have a break. Thiscould lead to legal or professional consequences for both the pharmacist and theemployer in question.

The employer requires the pharmacist to remain on the premises so that he can legally operate the business. But for this to occur, the pharmacist needs to be not just on the premises, but in control of the Pharmacy and in a position to intervene; in such circumstances, he/she is not having a break. In a 1971 Statutory Committee test case, the Chairman (then Sir Gordon Wilmer) said that"one foot in the door" was insufficient to be in control of a Pharmacy.

Road haulage operators have long had to live with 'tachographs' and regulationswhich require their drivers to have a break. Breaks for pharmacists are at least asessential as breaks for lorry drivers.

Suggested approach;Over-tiredness constitutes a danger to the public and a danger to the Pharmacist'shealth, it is for this reason that the PDA would urge pharmacists to avoid suchclauses altogether.

It is recommended that pharmacists should resist attempts by employers to over-work them and should insist on their statutory right to spend their rest breaks"away from the workstation" and this means the whole of the pharmacy. Should apharmacist be keen to work through their lunch, then they should arrange to bepaid an appropriate salary for this added responsibility. However, it is worthy ofnote, that if in the case of a dispensing error it transpires that the error may haveoccurred due to long working hours leading to the fatigue of the pharmacist, thenany RPSGB investigation may result in additional disciplinary consequences forboth the employer and the pharmacist.

© The Pharmacists’ Defence Association 2005

problems in contracts of employment. - The PDA · pharmacists, Pre-reg’s, locums and Primary Care Pharmacists. Based on ‘real ... Dealing with, and overcoming problems in contracts

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