Q A locum pharmacist has been working in our pharmacy for three years, but my niece has qualified as a pharmacist and I no longer need a locum. So, I have served him notice under our agreement, but he says he is an employee and entitled to a redundancy payment. Is a locum pharmacist self-employed or an employee?

A To determine the status of a locum pharmacist, it is necessary to consider a number of factors, which may or may not be addressed within a written agreement between the locum and the pharmacy to which they provide their services.

A standard locum agreement will often state that a locum is self-employed; however, while it is always strongly advisable to have a written contract in place, the label applied to a working relationship will not itself be determinative.

In the case of a dispute, courts, employment tribunals and HMRC will look behind a written agreement to consider how the parties manage the relationship on a practical level.

While locums will need to supervise staff in dispensing medicine in accordance with their duties, they should not (in keeping with self- employed status) be exercising any management function in relation to either the pharmacy or its staff. By the nature of their arrangement, locums should be able to turn down work on a particular day or shift (for example, because they have already been engaged by a different pharmacy) and ideally be able to provide a substitute.

Locums should not be an integral part of the pharmacy business or treated in the same way as employees. For example, locums should not receive staff benefits (such as a retail discount) or be paid during any period of holiday or sickness absence. Other indicators include whether the locum pays for his/her own training costs, membership of the RPS and professional indemnity cover or whether these are paid for by the pharmacy (which could indicate possible employment status). Locums must also be responsible for accounting to HMRC for tax on their income and should not be paid through the PAYE system like employees.

One factor on its own will not necessarily result in a locum being considered to be an employee. The test applied is to look at all the relevant factors and decide whether, on balance, it indicates an employment relationship or that a locum is self- employed.

  • The above is a general overview and we recommend that independent legal advice is sought for your specific concerns.

Rebecca Lawton is a solicitor in the pharmacy transactions employment team at Charles Russell LLP, rebecca.lawton@charlesrussell.co.uk

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