Ben Williams and Alan Lewis consider the employment law fallout for dentists following the latest Uber judgement.
There was a recent Supreme Court decision concerning thousands of Uber drivers. This 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.
We have written about this on previous occasions. However, 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 that sits alongside it.
The Supreme Court dismissed Uber’s appeal on Friday 19 February. This means 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. However, 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 that can – or at least will – arise for Uber. This can be a huge headache due to the fluctuations in earnings from month to month. 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.
While the risk of a claim of this nature might appear low, the potential financial exposure is considerable. Associate dentists could make such claims while 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.
The Supreme Court’s reasons
Take a look at some of the reasons for the Supreme Court coming to their judgment. You can start to see the parallels with your associate dentist:
- Uber determined the terms and conditions it has for using the service(s)
- Uber controlled the fares for each ride their driver attends to. The 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. Therefore there is the possibility of sustaining a loss
- Uber had policies and procedures in place whereby drivers could face penalties for not accepting a requested ride
- Uber ensured that their driver and passenger were all but prohibited from having an agreement outside of the application that Uber proved.
You can start to see the parallels in how practice owners 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. 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. Also, 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.
Associate dentists are arguably self-employed contractors. That is 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. However, a worker under their regular associate agreement at practice B. Each case will turn on its facts.
A risky business
There are other factors that mean the question over the employment status of dentists remains largely untested in the courts. This includes reaching settlements and the historic tax advantages and special dispensation from HMRC.
As we come out the other end of the pandemic the IR35 regime is upon us. It is not difficult to imagine why associate dentists might want to assert additional employment rights.
Equally why practice owners should heed the call and ensure their documentation reflects the working practices. and why they should constantly re-evaluate their business model and the risks that may pose
This article first appeared in Dentistry magazine. You can read the latest issue here.
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