All Dental Associates are recognised by HMRC as self-employed. That recognition is for tax purposes and does not govern their legal status. The legal status of Dental Associates being self-employed is now under threat, following the recent decision of the Employment Appeal Tribunal (EAT) case, Sejpel v Rodericks Dental Limited. This case overturned the decision of the Employment Tribunal which had found in favour of the dental practice.
This case looked at whether there was an unfettered right of substitution because the Associate Dentist could provide locum tenens as a substitute. When making their decision the EAT looked at the wording in the contract and concluded there was not an unfettered right to provide a substitute. This is because there needed to be a period of 14 day’s absence before a locum could be provided and that locum had to be approved by the dental practice. It could be argued that this case was decided on its specific facts, and it therefore does not mean that all Associate Dentists now have worker status. However, all dental practices need to be aware that this case is one of many cases iin all industries, that have determined that individuals previously seen to be self-employed, are in reality workers.
So why does this matter? It matters because workers have rights that the self-employed do not. The key rights are the right to holiday pay, statutory sick pay and to pension auto enrolment. All these rights will add cost to dental practices if their Dental Associates claim worker status. This decision does not mean Dental Associates will have employee status. It also changes nothing in respect of the right not to be discriminated against, as discrimination law has always applied to the self-employed.
Dental Practices are now faced with choices. They could dismiss the decision as fact specific and do nothing. They could move all their Dental Associates to worker status and accept the cost as well as the administrative burden, particularly in respect of providing access to a pension scheme. The least they should do, is review their contracts to support an argument, that their Associate Dentists do have the unfettered right of substitution. Words in a contract are not enough and the factual reality, needs to reflect the words in the contract. Will any Dental Practice accept that it has no say over the appointment of a locum?
Should you be concerned about employee contracts and need specialist employment advice, contact David Green directly, by email firstname.lastname@example.org or telephone 01353 888993.
This article aims to supply general information, but it is not intended to constitute advice. Every effort is made to ensure that the law referred to is correct at the date of publication and to avoid any statement which may mislead. However, no duty of care is assumed to any person and no liability is accepted for any omission or inaccuracy. Always seek advice specific to your own circumstances. Fraser Dawbarns LLP are always happy to provide such advice.
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