Recent judgement leaves significant consequences for NHS associate dentists

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June 24th, 2022

The EAT has handed down a important judgement in the case of Sejpal v Rodericks Dental Ltd [2022] EAT which will have significant consequences for NHS associate dentists up and down the country. This may also have wide implication following the Supreme Court Uber decision last year. This case follows the age old question of whether associate dentists truly are self-employed dentists, something we and others have doubted for some time.

The case centred on complaints brought in the Employment Tribunal relating to claims under the Employment Rights Act 1996 (“ERA 1996”) as well as under the Equality Act 2010. The protection afforded to the associate depended on her being a worker. If found to be a worker, the Tribunal would have jurisdiction to hear the complaints.

The associate in question worked under an associate agreement with Rodericks Dental which required her to provide personal service (without the unfettered right to bring in a locum / substitute) and which said that the practice she worked for was not a client / customer.

It is worth noting that the associate did not claim to be an employee but a worker which would in turn mean she had certain rights such as the right to paid holiday leave as well as the ability to bring discrimination claims in the Employment Tribunal. The Employment Tribunal dismissed her case but she appealed the decision to the Employment Appeals Tribunal.

The appeal succeeded on five grounds (of the six brought forward at the appeal), which were as follows :–

  1. The Tribunal wrongly over focused on the wording of the written agreement”. As per the decision in Autoclenz Ltd v Belcher [2011] UKSC, a court is required to look beyond the wording of the contract and assess the true nature of the agreement emphasising the importance we have previously commented on of not using templates and instead adopting bespoke agreements which reflect the reality;
  2. Mutuality of Obligation – it was not in dispute that the associate had entered into an ‘Associate Contract’ in 2013 and that there was a single contract between her and the dental practice. Therefore the concept of an ‘irreducible minimum of mutual obligations’ (which the employment tribunal had found to be missing) was not a determinative factor in this case. It should be noted that the whole concept of whether mutuality of obligation is essential to establish worker status has been the subject matter of conflicting case law, but the Court of Appeal in the case of Somerville v Nursing and Midwifery Council has recently confirmed that  mutuality of obligation is not determinative of worker status.
  3. Personal Service – the employment tribunal wrongly determined that the associate had an unfettered right of substitution i.e. to bring in a locum – which would be consistent with a self-employed contractor relationship with the practice. It was found that the associate did not enjoy this unfettered right and this involved the substitute having to also be acceptable to the practice and she was not entitled to provide a locum before a 14 day period of absence had elapsed.
  4. The Tribunal was found not to have properly considered whether the associate was carrying on their own profession or business (as a self-employed individual would do) and the level of control the practice exerted over the associate in respect of when and in what manner the associate undertook her work. For example, you could expect such analysis to include how much control the practice had over the laboratories used by the associate and the materials the associate was allowed to use as well as the clinical freedom to do the work and treatment as they saw fit.
  5. Furthermore, the tribunal should have assessed how integrated the associate was in the business of the practice. Again, one would expect matters such as the requirement to attend internal meetings, wear practice scrubs/uniform and take part in the practice’s marketing activity to be relevant.

The above factors were all of potential relevance of varying significance to the question of whether the associate was a worker or a self-employed contractor.

The EAT concluded that there was clearly a contract between the parties and that there was a requirement to provide some personal service. The EAT remitted the questions of whether the associate carried on a profession or business undertaking and whether the dental practice was a client or customer of hers, to a different Employment Tribunal. If the Tribunal finds for the associate on the question of whether she is a worker, she will be entitled to have her claim of unlawful discrimination heard by the Tribunal at a later date.

So what does this mean?

The findings of the Employment Tribunal could have significant implications for those working as or engaging NHS associate dentists as the contractual arrangements in place for the majority of associates are based on the BDA standard model agreement. It could also affect associates in private practice, depending on the specific contractual and working arrangements that apply to them. Therefore if this associate succeeds then others working under the same or similar model agreement could be entitled to Equality Act discrimination protection and the right to claim holiday pay (going back up to two years at least).

This poses not only uncertainty for dental practice owners across the country but a significant potential financial exposure in both facing down claims in the future should the associate in question succeed but also the value of those claims could be very concerning for many practices still recovering from the pandemic, inflationary pressures and the pressures of lack of supply of associates.

We are on hand to be able to assist practice owners with the drafting of bespoke associate agreements to protect their business as well as being able to advise individual associate dentists on their position and potential claims.

It appears that it is no longer adequate to rely on the status quo of issuing the BDA model agreement and the existence of a right of substitution in a contract will not by itself, preclude a finding that the associate is required to provide some personal service. If the direction of travel in employment status cases over the last few years is anything to go by, it seems more likely than not that the associate in the above case will succeed in her employment status claim.

How can we help?

At Linder Myers, our employment lawyers have considerable experience in representing both employees and employers and are recognised by the Legal 500 as a ‘leading firm’ within the North West.

With a combined experience of over 50 years, the employment team provides the guidance, advice and support tailored to your case.

Get in touch with us today to discuss your options by phoning 0800 042 0700 or send us an email at enquiries@lindermyers.co.uk. Alternatively, you can fill out the form below and a member of the team will be in touch shortly.

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