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Are Dental Associates ‘Workers’?

Will tribunal win affect dental associates’ employment status?

The following appeared in Dental Review, written by Jonathan Jacobs of Nexa Law. The case was reported by Doyle Clayton, and Jonathan believed it has important implications for dental associates’ employment status.The self-employed status of associates may have survived for decades, but there have been regular threats. A recent court case will be of interest and the judgment has potential wide-reaching implications for thousands of dentists.There were serious concerns in the UK dental world following a key judgement last year, on the status of Uber drivers. The courts decided that they were ‘workers’, and entitled to rights such as the minimum wage. Ubers defence had been that their contract characterised workers as self-employed. The Supreme Court disagreed. The key question is whether the person is “subordinate and dependent” on a business. If they are, then they are a worker, regardless of how their contract classifies them.An associate claimed that the dental practice unlawfully discriminated against them because of pregnancy or maternity. Their entitlement to protection depended on her being a “worker” within the meaning of section 230(3) Employment Rights Act 1996 and the equivalent provision of the Equality Act 2010.This required that they worked under a contract with the dental practice under which they agreed to perform work personally and that the dental practice was not a client or customer of a business carried on by them. The associate did not assert that they were an employee for the purpose of Employment Rights Act 1996.The employment tribunal ruled that the associate was not a “worker” and as a result the claims were dismissed. Leave to appeal to the Employment Appeal Tribunal was granted.The Employment Appeal Tribunal ruled that the employment tribunal did not adopt a “sound framework for the analysis of this case” and adopted an “erroneous approach” to its analysis of the agreement between the associate and the dental practice.

The appeal succeeded on the following grounds advanced at the hearing:

• Ground One (Written Terms): The employment tribunal erred in its approach to the written terms of the contract between the dental practice and the associate

• Ground Three (Personal Service): The employment tribunal erred in deciding that the associate had an unfettered right of substitution and therefore that they did not satisfy the requirement to provide personal service. The associate did not have an unfettered right of substitution because they were not entitled to provide a locum before a 14-day period of absence had elapsed and the contract contained an express requirement that the replacement must be acceptable to the dental practice

• Ground Four (Control) and Ground Five (Integration): The employment tribunal failed to assess the questions of (1) whether the associate carried on a profession or business undertaking and (2) whether the dental practice was a client or customer of and the concepts of control, integration and/or subrogation, (this is the assumption by a third party of another party’s legal right to collect a debt or damages) were potentially relevant to this analysis.

The judge remitted two Outstanding Questions to a different employment tribunal to consider. If that employment tribunal rules that the associate is a worker, they will be entitled to proceed with their claim of unlawful discrimination.

The findings will have significant implications for NHS Dentistry. The relationship with the dental practice is common to most NHS dentists and the associate contract was based on the standard B.D.A template document.

Should the appeal succeed, affected dentists would likely be entitled to protection from discrimination and to holiday pay.

-Jonathan Jacobs, Corporate Healthcare Partner

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