The employment law fallout for dentists following the latest Uber judgement

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  Posted by: Dental Design      26th May 2021

The recent Supreme Court decision concerning thousands of Uber drivers is likely to hold the employment status of individuals up to the light in a number of sectors in the coming months, not just in the gig economy but also in the dental industry.

This is something which I have written about on previous occasions but this judgment now clearly poses potential issues surrounding the employment status of associate dentists. For a variety of reasons in the past, the consensus and presumption has been that “all dentists are self-employed” regardless of the reality of the relationship from day to day or the documentation which sits alongside it.

The Supreme Court dismissed Uber’s appeal on Friday 19 February, meaning that Uber drivers are to be considered as “workers” and not self-employed contractors.

This falls short of making Uber drivers employees with full employment protection rights but it does provide them with the basic rights of paid holiday, rest breaks, and the national minimum wage. In addition, there are potential pension right issues which can arise or at least will arise for Uber which can be a huge headache due to the fluctuations in earnings from month to month or even day to day. The same could prove to be an issue in the future for dental practices.

The status quo for associate dentists has long been that they do not have holidays; they have ‘time away from the practice’, ‘non-clinical days’ or ‘agreed absence’ for which they are not paid. Whilst the risk of a claim of this nature might appear low, the potential financial exposure is considerable and associate dentists could make such claims whilst remaining engaged under their associate agreements.

In the current economic climate, the potential back-pay of holiday for associate dentists with considerable daily rates of pay in a private practice for example could well thrust huge financial stress on a practice.

If you look at some of the reasons for the Supreme Court coming to their judgment last week, one can start to see the parallels with your associate dentist:

1. Uber determined the terms and conditions it has for using the service(s);
2. Uber controlled the fares for each ride their driver attends to and Uber drivers are not permitted to set their own pricing. A key component of being self-employed is the ability to set your own prices (and therefore the possibility of sustaining a loss);
3. Uber had policies and procedures in place whereby drivers could face penalties for not accepting a requested ride;
4. Uber ensured that their driver and passenger were all but prohibited from having an agreement outside of the application which Uber proved.

As you work through the above, you can start to see the parallels in how practice owners (and arguably even more so in the case of larger corporates), control the pricing within their practices with associates bound to charge those prices or face financial clawback or penalty, control patient appointment times, the materials used and the approach to the treatment of patients. In addition, it would be difficult to find an associate dentist armed with the right to set their own set of terms and conditions with a patient. In practice, it is often the case that an associate dentist has no real option but to accept the patients assigned to them for appointments unless such planned treatment is outside of their requisite specialism.

It is the case that associate dentists are often bound to use specified equipment and, or materials as well as particular laboratories (and where they have the right to choose that can mean effectively a financial penalty with the practice owner only sharing the lab costs for specified laboratories).

It is of particular note that one of the key components of being a worker compared to a self-employed contractor is the requirement to provide personal service. In reality, despite the wording of the majority of associate agreements, associate dentists are required to provide personal service and the supposed right to appoint a locum is seldom a reality save in relation to extended periods of illness or absence due to maternity. This important point was highlighted in the Employment Tribunal case of Marshall V Jussab (t/a Cheadle Village Dental Practice) (2414676/2012) where the associate dentist was not only found to be a worker but also an employee.

The way in which practice owners adapt to this is crucial whether that be to cede some control to its associate dentists who are engaged to treat the patients and assist with building up the goodwill or whether it wants to maintain or even increase the level of control over its associates but accepting the worker status likely to come with it. This judgment is clear and confirms previous cases in that labelling someone as self-employed is insufficient and the need for contractual documentation to reflect the reality has never been greater.

The discussion as to whether there are some associate dentists working in practices who are effectively employees is perhaps for another test case. There will be some junior associate dentists working with stringent targets and designated appointment times with all equipment and resource provided to them with a great degree of control exerted over them by practice owners, who have an arguable case that they are employees.

It is arguable that associate dentists are self-employed contractors until they walk through the practice and start to utilise the facilities of a practice, during which they are workers with their materials, patients and support all provided by the practice owner. An associate dentist could be a self-employed contractor under one engagement where they are a visiting specialist once a month at practice A but a worker under his regular associate agreement at Practice B. Each case will turn on its facts.

There are other factors which mean the question over the employment status of dentists remains largely untested in the courts, including settlements being reached and the historic tax advantages and special dispensation from HMRC.

As we come out the other end of the pandemic and with IR35 regimes upon us, it is not difficult to imagine why associate dentists with their earnings squeezed over the pandemic might want to assert additional employment rights and equally why practice owners should heed the call and ensure their documentation reflects the working practices and constantly re-evaluate their business model and the risks that may pose.

If you have any questions or would like to speak to a lawyer about a situation, get in touch today: enquiries@lindermyers.co.uk

 

Authors:

Ben Williams is an employment solicitor at Linder Myers and has advised employers, associate dentists, contractors and employees in the dental industry since 2013 and qualified as a solicitor in 2017 which gives him considerable experience of this sector and the variety of challenges faced by dental practice owners, clinicians and employees alike. 

Ben’s experience includes advising on varying employment terms and conditions following or in relation to business restructures, advice on TUPE business transfers and service provision changes, employment tribunal representation and redundancy processes as well as advising on, negotiating and drafting settlement agreements on behalf of employers and employees.

Ben can also provide advisory services to dental practice owners including via the firm’s Employ-Line service to his clients such as drafting contracts of employment, service agreements, dental / orthodontic associate agreements, staff handbooks and policies and procedures.

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Alan is Principal Lawyer, Head of Commercial Division and Employment Department and  has considerable experience of representing both employers and senior employees in a wide range of Employment Tribunal and High Court disputes

Alan is one of only a handful of Solicitors in the North West who has received special recognition by the internationally acclaimed directory ‘The Legal 500’. The Legal 500 ranks lawyers across each country based on their feedback, work and by recommendation of their peers, for which Alan received an additional accolade for his work

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