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15 December 2017

Key issues for the pharmacy profession in 2018

The year 2017 was an interesting one for employment law, most notably due to the Supreme Court abolishing tribunal fees; we are likely see the full effect of this in 2018, with there now being no real financial barrier to employees pursuing claims.

Also for the year ahead, pharmacy owners should be considering the employment status of their staff, the introduction of new data protection regulations (known as the “GDPR”), and the impact of Brexit.

Employment status  

The gig economy has received significant media coverage in recent months, with a number of high profile organisations being subject to judgements that individuals who they engaged as self-employed are in fact workers and should therefore receive rights such as a minimum wage and holiday pay.

Whilst many associate the gig economy with delivery-based businesses, it can also be relevant to the pharmacy sector more widely. Often, a pharmacy business will use a locum on a semi-regular basis, and may even come to rely on them on an ongoing basis.

The question then arises – what is their employment status? Are they legitimately self-employed or have they transitioned into an employee over time? Relationships can evolve into one of employment if the parties do not both conduct themselves in keeping with their original intended status.

It is likely that in 2018 we will see more cases considering this area further. We may also receive guidance from the Government on the position, in light of the report published by Matthew Taylor in July 2017, Good work: the Taylor Review of Modern Working Practices.

The Review examined modern working practices in the UK and specifically focused on issues related to employment status, making a number of recommendations which appear aspirational and would require a substantial amount of legislative change if they were implemented. Whether any changes that stem from the Review provide helpful clarification to the current position remains to be seen.

General Data Protection Regulation (GDPR)

The EU General Data Protection Regulation (GDPR) will come into force on 25 May 2018. It has been designed to harmonize data privacy laws across Europe, to protect and empower all EU citizens’ data privacy and to reshape the way organizations across the region approach data privacy. Despite Brexit, the UK Government has confirmed it will implement the GDPR, with it replacing the Data Protection Act 1998.

In light of this, pharmacy owners should be reviewing their current data protection arrangements to ensure they comply with the new regime, particularly as the GDPR has the potential for far greater enforcement penalties than the current laws.

In particular, owners should ensure that they have consent to process employee data, as consent obtained in an employee’s contract is unlikely to be effective under the GDPR. You should also ensure that you have a data breach response plan, as the GDPR requires mandatory breach reporting.

As the rules surrounding the use of data processors i.e. payroll companies or providers of cloud services, will become more strict, pharmacy owners should also assess whether the current contractual arrangements are fit for purpose. Further, depending on the scale of sensitive personal data you process or level of monitoring, you may be required to appoint a Data Protection Officer.

Brexit

There is potential for significant changes to UK employment law as a result of Brexit, particularly as reducing employment regulation derived from the EU was a key driver of the Leave campaign. As with many issues related to Brexit, the position remains unclear.

A lot will depend on how the exit negotiations progress with the EU, and currently, it appears that UK courts will still have regard to the decisions of the European Court of Justice.

It is likely that, so long as the UK remains part of the European Economic Area single market, the EU is likely to require the UK to continue to be bound by EU Directives on labour law. Should that happen, employers could be bound by exactly the same obligations as they are at present.

It is likely that, should any changes be made, the focus will be on areas of employment law where the rules can be simplified or tailored to be more suitable for the UK workforce, for example clarifying the position in relation to how to calculate holiday pay.

Recent European court decisions have caused significant confusion in this area, requiring employers to include overtime, commission and other normal remuneration (in addition to basic pay) in calculations for holiday pay, however there has been little guidance as to how this should be applied in practice.

According to the latest stage of the Brexit negotiations, the rights of the three million EU citizens living in the UK will be protected post Brexit. A number of factors however remain uncertain, including the position on EU workers arriving in the UK after the UK officially leaves the EU. For the time being, pharmacy owners can do little but wait to see how the exit negotiations progress.


This article was written by Amelia Goodwin and published in Pharmacy Business on 15 December 2017. For further information, please contact Amelia on +44 (0)1483 252 672 or amelia.goodwin@crsblaw.com

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