Reformation agency and zero-hour worker rights – Ben Williams

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Posted by: Dental Design 8th May 2019

There have been a number of interesting developments in the world of employment law – not least of which involves proposed government plans to reform agency and zero-hour worker rights.

Changes include:

The repeal of the ‘Swedish Derogation’, which excludes agency workers from the right to the same pay as other workers who are directly employed or recruited by the employer, if they have a contract of employment with the agency in question.
The period required to break the continuity of employment increased from 1 to 4 weeks. This is important in a more flexible and arguably casual labour market where workers are engaged to meet fluctuations in demand for their labour. Previously, only a week would be needed to break continuity of employment (i.e. the length of time that employees are deemed to have worked for an employer for the purpose of calculating whether they have the right to claim unfair dismissal or are entitled to a redundancy payment). However, the change will mean that the gap between the employee working a day and the next day they work will need to be four weeks or more apart to break continuity. This means more workers are likely to accrue employment rights, which bite after two years of continuous employment.
A day one right to written statement of rights for all workers to include:

Eligibility for different types of paid leave; and
Eligibility for sick leave pay.

There is no timescale indicated for when these legislative changes will become law, but given how much time has been spent looking into these issues over the last two years, one would expect it to be a priority after March.

Taxi drivers and dentists

Aanother recent case has highlighted the parallels that can be drawn between the working arrangements of a taxi driver and an associate dentist. The Employment Appeals Tribunal upheld an employment tribunal’s decision that the drivers working for Addison Lee Ltd were workers and therefore, entitled to some employment rights – including working time regulations, the national minimum wage, paid holiday and protection if they have unlawful deductions made from their wages.

Why were they found to be workers and not self-employed contractors?

Theprovision of equipmentby the company to the individual driver
Systems in place to assign workto the driver
When the work was assignedto a driver, the driver was expected to accept itand must give an acceptable reason for refusing to undertake the work
There was no promise of work but they were told of the average amount of hoursthey would be working per week
The presence of an overarching agreement providing for a mutuality of obligationto offer and accept/perform the work
Arealistic expectation of being offered workwhen they logged on
Obligation to work personallyonce they logged on
Theyworked all of the time they were logged on(except during breaks)
Whilst logged on, they were undertaking to accept the jobs allocatedto them

There was also re-confirmation of the point made in a 2018 case that the regular offer and acceptance of work occurred so that work became continuous, met with the definition of worker status.

The parallels

If you consider the underlined words above with regard to the relationship between a dental practice principal and an associate dentist, you will see that:

The associate is provided with equipment and facilities to perform treatment.
There are systems in place to deliver patients to the associate (whether through the NHS, capitation or private lists).
When a patient walks into the surgery or the appointment book is filled for a session, the associate is expected to perform the work.
The associate turns up during the availability of the surgery with the expectation that there will be work/treatment to perform – albeit that there may be white space in the appointment book.
In most cases, an associate performs the work personally and there is certainly not an unfettered right to use a substitute/locum to perform the treatment. At best, that right is in very specific circumstances and by mutual agreement with the principal.
In most cases, an associate is obliged to accept patients for treatment. A well-founded reason must be provided if they refuse to do so.
Whilst an associate is in surgery, they are arguably being offered and accepted work every 10-30 minutes, depending on the nature of each appointment.

So far as employment tribunals are concerned, this case exemplifies the direction of travel in finding that many supposed self-employed contractors are, in fact, workers. Where there is a grey area, the balance is being further tipped towards someone being found to be a worker.

There are genuine and well publicised reasons why many believe neither associate dentists nor practice owners wish to rock the boat and challenge their employment status. However, practice owners need to be cautious in the way they have their associate agreements drafted. They should also consider breaking away from the status quo of standard documents, as well as the potential future costs in the event one or all of their associates are found to have worker employment rights.

Ben Williams of Goodman Grant Solicitors – contact bw@goodmangrant.co.uk

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