Superdrug are in the process of implementing a new employment contract for all pharmacists. They have been 'in consultation' for some months but only now is the grim reality dawning on members when they are being asked to sign it or risk dismissal. PDA explore the employees options in this article…
Superdrug are in the process of implementing a new employment contract for all pharmacists. They have been 'in consultation' for some months but only now is the grim reality dawning on members when they are being asked to sign it or risk dismissal. PDA explore the employees options in this article
Superdrug will claim with some justification that they have been consulting with staff for some months on the implementation of a new employment contract. Members who have contacted us on the other hand may argue that either they were not really aware that the consultation was taking place or of its implications until the 'new contract' was presented as a fait-a-complete. Others have probably been - well just apathetic until the grim reality of what has happened has suddenly dawned on them; regretably, some are still probably completely oblivious and may well remain so until the company choose to rely upon one of the new clauses which disadvantages them.
All employees must be prepared to be active and ensure representation during consultations on their employment contract. Members who find themselves in a similar situation in future would be advised to make use of the collective impact that the PDA Union can have on their behalf in such circumstances. This article demonstrates our concerns and gives advice and options of what you can do and what rights you have in the event that you do not accept or agree with the contract or any of its clauses.
Superdrug has now issued a new employment contract which they wish to impose on their work force. We have therefore examined the contract at our members' behest outlining the problem clauses below as we see them, as well as providing our opinion regarding the legality of Superdrug's decision to dismiss if you do not sign the new contract.
Our initial thoughts are that the contract is extremely one sided allowing the employer the greatest flexibility it could possibly have with regards to work patterns and environment. It makes no provision for personal and domestic circumstances which are unique to the employee or the fact that the employee is simply happy withthe terms as they are and have no desire to change them.
1.2 'We can make reasonable changes to: your job title; the capacity in which you are employed; and /or your duties and responsibilities. We can require you to perform new or additional duties/responsibilities. We can also change the person who whom you report.'
This may become a problem in the future as it does not appear that if changes are made to 'duties or responsibilities' that you will be consulted or even given any notice of these. This may have implications for those who do not wish to be the Responsible Pharmacist or take on advanced or enhanced services. Members should seek written clarification as to what Superdrug considers "reasonable changes" to see if these are in line with your own understanding. Regarding your new responsibilities as a Responsible Pharmacist, the PDA have provided template letters in the 'RP Tools' section of the website.
1.3 'You must comply with all of our rules, regulations, policies and procedures.'
The contract refers to 'our rules, regulations, policies and procedures' what are these and where can they be found? You will need to ensure that you read all documents and policies particularly if they have been given to you and that you comply with them. This also applies to clause 18.2.
2.2 'We can require that your hours of work take place on any day of the week. You agree to work whatever hours we reasonably allocate to you. You will normally be required to work five days out of seven in a week..."
This change supersedes existing agreements regarding your work pattern and does not take into account your preferences, the fact that you may have religious beliefs or caring responsibilities that prevent you from being able to work on certain days. We recommend that you obtain confirmation in writing of the days you will not be required to work if certain days are problematic for you.
2.4 'You agree that if we need you to do so that you will work in excess of an average 48 hour working week and that you therefore agree to opt-out of the 48 hour average limit set out in the Working Time Regulations 1998. If the law in future permits, you agree that our average working hours should be measured against whatever reference period we may reasonably decide should apply.'
As the law currently stands, an individual worker and his/her employer can validly agree to opt-out of the 48 hour maximum working week imposed by the Working Time Regulations. A worker has protection against being forced to work long hours and it is unlawful to subject a worker to any detriment for refusing to sign an opt-out agreement. Any opt out agreement must be voluntary and in writing. It can be cancelled at any time by giving between one week's and three month's notice. If no notice period is agreed then you only need to give one week's notice of cancellation and this must be in writing.
You only need to agree to sign this opt-out clause if you wish to work beyond the 48 hour working week time limit. Employees who do not wish to work in excess of 48 hours should notify Superdrug of this in writing or annotate any new contract to the effect that they do not wish to opt out of the 48 hour limit.
2.7 'For the avoidance of doubt, we treat Sundays as a normal working day. You will therefore be expected to work Sundays if we require you to do so. If you wish to opt out of working Sundays altogether you must give your line manager 8 weeks notice. Upon the expiry of the notice your number of contracted hours will be reduced accordingly, unless your line manager is able to allocate you additional hours during the week.'
This clause puts anyone who does not want to work Sundays in a detrimental position and means that you are giving your employer the power to permanently cut your contracted hours if they wish to do so. This clause potentially discriminates against individuals who view Sundays as a day of rest or prayer for bona fide religious reasons and may be viewed as unfair for those who have caring responsibilities or simply have a preference not to work Sundays. Those of you who do not wish to work Sundays for whatever reason should make this clear to your employer.
3.1 'Your normal place of work is... We can make a reasonable request to you to work at another store on a temporary or indefinite basis.'
This is basically a mobility clause and it is important for those who may not be able to do this due to having caring responsibilities to give serious consideration to agreeing to this clause. It does not state that notice will be given and therefore this may be a last minute change. In our experience this clause can be abused by some employers who wish to terminate an employee's contract without having a good enough reason to do so. Unfortunately some of our members have had a tremendous amount of pressure applied to them to relocate to other pharmacies quite a distance away and because they have consented to clauses like these it has been impossible to put forward any challenge. Clarification should be sought in writing of the distance you will be expected to travel.
7.3 '...You must not undertake additional employment outside of the group...This includes undertaking duties as a locum pharmacist out side of your employment by the Company.'
This means that employees will be prohibited from doing locum work outside your normal working hours whilst working for Superdrug. Many employed pharmacists also undertake locum duties and most employers understand this. Some of you may find this clause could result in a significant drop in your total income particularly those of you who are part time employees and you may therefore wish to challenge this clause. The reality is that your employer should only be concerned with other employment you have outside its' business if it can be said that it interferes with the business. In most situations any employer preventing you from working elsewhere as a locum is in our opinion going beyond what is necessary to protect its' business interests. We recommend that this clause should be amended to state that the consent of Superdrug will not be unreasonably withheld for those seeking to work elsewhere.
Employees may be dismissed from their employment for fair reasons only. Dismissal for refusing to sign a contract with new terms and conditions could be considered a fair reason by an Employment Tribunal in certain circumstances.
What needs to be considered is the balance between an employer's need to change the existing terms against the employee's need to keep things as they are. The Courts have in the past appreciated that some employers have had no choice but to make changes in order to keep the business afloat and have found that employees refusing to accept changes have been unreasonable in doing so.
It goes without saying that if the majority of employees sign this contract the minority are put at increased risk of being dismissed fairly. You should raise any concerns you have and obtain written responses before signing the new contract.
The PDA believes that too many changes have been put forward by Superdrug and we are currently not aware of what the business reason for making these changes is. Whilst we cannot guarantee success we are reasonably confident that employees with at least one years' continuous service who cannot comply with the changes due to having caring responsibilities or on religious grounds would succeed in bringing unfair dismissal claims in an Employment Tribunal.
For those of you who do not wish to sign the contract, we advise that you write to your employer stating that you do not agree to it on the basis that the changes represent fundamental changes and you do not consider your refusal to comply with the changes to be unreasonable.
Consequently, if you are dismissed for refusing to agree to new terms you will consider yourself to have been unfairly dismissed and you will seek the appropriate remedy through an Employment Tribunal accordingly.
WARNING: Only those with one years' continuous service are eligible to bring a claim for unfair dismissal in this respect and therefore those with less than one year would be advised to sign the contract informing Superdrug that you are doing so not because you agree with the changes but because you feel that you have been left with no other option.
For those of you who cannot comply with the changes on religious grounds, there may be a case to argue that you are being discriminated against on the basis of your religion. One years' continuous service is not required for such a claim and we would ask that you contact us to discuss matters further and we can advise you how to respond to your employer.
This information provides general information on the contract and members can obtain individual advice by contacting the PDA on 0121 694 7000
This article was first published on the 'The PDA' website.
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