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The Tooth Counsel

Here at the Tooth Counsel we pride ourselves on giving honest and practical advice to dentists, whatever their problem maybe.
Over the years our lawyers at JFH Law have assisted dentists with employment and HR matters, helped them prepare for CQC inspections, made applications to the GDC for entry onto the specialist lists and respond to complaints, whether raised via patients internally or matters before the NHS or GDC.
Remember; prevention is better than cure so ensure you obtain the right counsel for your dental/legal needs before a small filling becomes a root canal.
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On 29th November 2017, the European Court of Justice (ECJ) handed down its decision in the case of King v Sash Windows. It is another case in a long line on holiday pay and has opened the flood gates for workers to claim unpaid holiday dating back 20 years.

Why is this relevant to dental practices?

At present most associates are working under a self-employed contract and as such will not be paid holiday pay. However, there is a risk, especially for those associates employed by a dental corporate, that in fact the reality is that associates are workers and therefore entitled to holiday pay.

Mr King’s case does not change the legal test for establishing who might be a worker. However, prior to this case, it was thought that workers could only claim up to two years back dated holiday pay. This meant the risk to dental practices if an associate was wrongly classified was fairly limited.

Now a dental practice is at risk of having to pay anyone found to be a worker unpaid holiday from the start of their contract or from 1998, when the Working Time Regulations came into effect, if the contract began before then.

Definition of a Worker

Before looking at this case in any detail, it is important to understand what the definition of a worker is. This is another area of employment law that has had a number of high profile cases in recent years. In essence the test is as follows:

  1. Must the person personally provide the service or can they send a substitute?

            Most associate contracts contain a right to send a substitute. However, if the right is fettered this 

            could result in the associate being found to be a worker.


  1. Is the company obliged to provide work and is the person obliged to accept it?

           If you have an NHS contract, you need to ensure that the associate meets their UDA targets. This 

           therefore could infer into the contract a mutuality of obligation. 


  1. Was the status of the ‘employer’ under the contract that of a customer?

            No; the customer is the patient. The associate is providing their services for your customers.


Mr King was a self-employed window salesman. He began working for Sash Windows in 1998 and was paid on a commission only basis. He never asked for holiday pay and he never received it. On average Mr King took fewer holidays each year than a worker is entitled to. Just before his 65th birthday Mr King’s contract was terminated on the platform of Victoria Station due to his age.

Mr King pursued various claims including unfair dismissal and age discrimination. Here we will just deal with his holiday pay claims, of which there were three, namely:

  1. Claim 1 = holiday pay due on termination of employment, namely in the final year;
  2. Claim 2 = holiday pay due in respect of days off taken but not paid for;
  3. Claim 3 = holiday pay due for any days he did not take from the annual leave entitlement.

The employment tribunal found Mr King to be a worker and all three holiday claims were successful. He was awarded £27,257.96 in total for this element of the claim.

The case was appealed and there were cross appeals in relation to various aspects of the findings. The issue in relation to the holiday pay claim was ultimately referred by the Court of Appeal to the European Court of Justice. 

Holiday Pay Claim; Legal Arguments

Firstly, the only holiday pay claim subject to appeal was in respect of claim 3 – holiday pay due for any days not taken from the annual leave entitlement.

Sash Windows’ main argument was the ‘use it or lose it’ principal, which in essence states if a worker does not use his annual leave entitlement in the applicable holiday year he will lose it entirely. This is because there is no automatic right to carry holiday entitlement from one leave year to the next. They also suggested that a worker would have ‘double recovery’ if they received pay for holidays that they in fact worked and were paid for.

Mr King argued there were circumstances beyond his control that meant he could not take the annual leave and so it should roll over. In this case it was argued that the circumstances beyond his control were his employer’s intentional failure to pay him holiday pay.


The Working Time Directive was enacted to ensure the health and safety of workers; to allow employees sufficient time away from work to ‘recharge’.  Therefore workers should not be deterred from taking their annual leave entitlement. Given this underlying principle the ECJ found that:

An employer who does not allow a worker to exercise his right to paid annual leave must bear the consequences.

Therefore whilst there may be double recovery, that is a risk the employer takes in not granting a worker his paid annual leave.  The ECJ felt it was for the employer to correctly categorise staff and ensure they are given their employment rights, as workers are in a weaker bargaining position.

The case has been referred back to the domestic courts for a final decision. However, the Court of Appeal will no doubt follow the ECJ’s decision.

This means that an associate can continue to claim they are self-employed and then on termination seek to argue they were in fact a worker and claim back dated holiday pay. There would be no down-side for the associate, as employment tribunal fees have been abolished and there is no costs regime. Also as the test for employment status is different for HMRC and the tribunal, a retrospective change of status would have no bearing on this. The risk is therefore all on the dental practice.

Further, the definition of a worker under the Working Time Directive is wider than the UK law, which an associate may be able to rely on when pursuing their claim.

Practical Tips

First and foremost, make sure you correctly categorise your workforce from the outset and provide a contract that reflects the true basis of the relationship. Whilst this means front loading time and costs, it is likely to save you a hefty legal bill later down the line.

This decision only affects the 4 weeks annual leave granted by the Working Time Directive. Not the additional bank holidays given by UK legislation. Consider amending your contracts to state that UK bank holidays will be deemed to be taken last. You would not need to add this to associate contracts, but if it is in your employment contracts you will be able to rely on this as evidence should a claim be pursued against you.

When buying a practice do your due diligence on the workforce. Make sure the old practice is complying with the Working Time Regulations. Ensure the sale agreement contains indemnities in case staff have been wrongly categorised. Consider implementing your own contracts that are genuinely self-employed, time limits for presenting a claim against you would then start running from the date of the sale.

When selling a practice be careful what warranties you give to the buyer. You would not want to be liable for the entire claim, especially if the new practice has also continued with a contract that was not genuinely self-employed.

If you need advice or assistance in relation to employment status and protecting your position, please contact Laura Pearce on 020 7388 1658 or email her at This email address is being protected from spambots. You need JavaScript enabled to view it..

Laura Pearce

Senior Solicitor


©Laura Pearce, JFH Law, GDPUK Ltd, 2018.
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The NHS are currently in the process of putting out to tender a number of specialist NHS dental contracts, including orthodontics. The NHS are advising practices who intend to re-tender or bid for the first time to seek advice in relation to TUPE (Transfer of Undertakings (Protection of Employment) before they do so. But why?

TUPE applies where an economic entity transfers from one business to another. This can be a whole business or part of one. It applies in a number of  situations, not just when a dentist is  buying or selling their practice. It can also apply when a business takes services back in-house or outsources services.

The Transfer of Undertaking Regulations, or TUPE for short, offers enhanced protection for employees who transfer from one business to another. It is an extremely complex and confusing piece of legislation. 

In this article we  set out the key principles to help dentists better understand when a TUPE situation may arise during the NHS tendering process and what their responsibilities are. 

What is TUPE?

TUPE requires a business that is buying another business to take on any employees connected with that business.

It applies in three situations:

1. Where one business buys the whole or part of another business;

2. Where a business decides to take services back in-house, for example they use an IT contractor but wish to start undertaking the services themselves;

3. Where a business decides to outsource a service, for example it tenders for cleaners to undertake the office cleaning or it re-tenders that contract.

Whilst it is obvious TUPE will apply when you buy a practice, the question of whether TUPE applies when you tender for an NHS contract is more complicated. The NHS is a business which is outsourcing its services. A move from one provider to another would normally come under point 3 above. On the face of it therefore TUPE would apply.

Business Entity

In order for TUPE to apply the business that is being sold must be an ‘economic entity’. This means:

– It is an economic entity with assets, employees, goodwill etc that is operating as a business;

– There is a transfer of that economic entity; and

– The economic entity retains its identity after the transfer.

Again when you buy a practice it will retain its economic identity as you are buying all the goodwill and assets of that business.

However, how does this apply to a tender for an NHS contract?

Unfortunately this is not an easy question to answer. It will very much depend on whether patients are transferring from the old practice to the new one. A group of NHS patients that moves with the NHS contract could be seen as an economic entity. Any employee who provides treatment to those patients for the majority of their time at work would therefore transfer with the contract. This could mean the nurses and support in a specialist practice that loses its NHS contract will be TUPE transferred to the practice that has won the contract.

Remember TUPE applies to employees only; not workers or those who are self-employed.

Enhanced Protection

Any employee automatically transfers from one business to another and their existing contract survives. In effect the new employer is stepping into the shoes of the old employer. There are very few rights that do not transfer, such as occupational pension schemes. Otherwise all other rights and liabilities will transfer. There are also very limited circumstances in which you can amend an employee’s contractual terms.

You will also need to inform and consult any employees who are affected by the transfer. This duty is on both the old and new employer.

In addition you cannot dismiss an employee as a result of the transfer unless you can show an Economical, Technical or Organisational (ETO) reason for doing so. For example, if you are a practice that wins a new NHS contract and has to take on new employees but you have sufficient employees for the work you tendered for, you may have an economical reason for dismissal, namely redundancy.

Due Diligence

If you are taking on employees from another business you need to make sure you do your due diligence. You will need to obtain information about those employees, including whether they have any outstanding grievance or disciplinary matters. As set out above, any liabilities pass to you and if you are not aware of an outstanding grievance you could have a claim issued against you.

You also need to ensure you have a well drafted transfer agreement, so that if the above were to happen, you will be indemnified by the old employer in respect of any claim issued against you.

That is a lot to think about!

TUPE is a complex area of law with many nuances. If you have any concerns about whether it applies, take legal advice and get proper agreements drawn up to protect you. The consequences of getting it wrong can be high.

If you need advice or assistance on TUPE, please contact Laura Pearce on 020 7388 1658 or email her at This email address is being protected from spambots. You need JavaScript enabled to view it." style="text-decoration-line: none; transition: color 300ms; color: rgb(247, 180, 51); outline: none !important;">This email address is being protected from spambots. You need JavaScript enabled to view it..

If you find this article interesting, please like, comment and share it!

Laura Pearce, Senior Solicitor

©Laura Pearce, JFH Law, GDPUK Ltd, 2018.
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What is the GDPR?

The GDPR is a new set of rules which will apply to all organisations that collect or retain personal identifiable data from any European individual. The idea behind it is to standardise data privacy laws and mechanisms across industries, and to ensure that fundamental rights of individuals are protected in today’s increasingly data-driven digital economy.

6 Things you need to know now

It is extremely important that everyone in your dental practice is made aware of the rules surrounding the new data regulation. Preparing for the GDPR will require changes in the practice’s culture, which you should start to plan in advance of the May 2018 deadline. Keeping everyone informed will ensure that your practice follows the proper procedure, and the GDPR is handled with the utmost care.

Here are 6 steps that will help your practice prepare for the changes today.

1. Article 7 GDPR – Consent

Under the new regulation, dental practices will be required to keep a record of how and when the patient gives consent to store and use their personal data. Consent will need to be clear and distinguishable from other matters and provided in an intelligible and easily accessible form, using clear and plain language. Consent cannot be inferred from silence or inactivity of the user.

Further requests for consent will need to be separate from other terms of engagement. In practical terms this means you will need to clearly explain to your patients what you are intending to do with their personal data.

It must be borne in mind that consent once given can be revoked, and it must be made equally easy to withdraw consent given.

The GDPR also introduces a requirement for parental consent. Where services are offered directly to a child, practices will need parental consent to process the data of under 16s.

To do list:

– Identify the categories of personal data processed within your practice.

– Consider the legal basis applicable to the processing of personal data within your practice, and make sure these grounds will still be complied with the GDPR.

– Where consent is relied on, check that it will be: freely given, specific, informed, and unambiguous.

– Consider introducing processes to promptly honour any withdrawals of consent.

– Make sure you keep a record of consents given to demonstrate compliance.

2. Articles 12-15 GDPR – Privacy notice

Aside from the need to obtain consent, your practice will be under an obligation to ensure that the processing of data is fair and lawful. Also, appropriate information must be given to your patients as to how their data is to be used. This is normally done in the form of a privacy notice. The GDPR has a mandatory list of the information which must be given to patients where data is obtained directly or indirectly from them. You will be expected to explain to your patients what data relating to them will be collected, how it will be used, the purposes for which it will be used and how their data may be shared.

To do list:

– Get to know your data. Consider what information is being collected, who is collecting it, how and why it is being collected.

– Consider how the information obtained will be used and who will it be shared with.

– Consider what possible effect the information obtained could have on the patients concerned.

– Consider building a data catalogue (if you haven’t got one in place) and drafting a meaningful privacy notice.

3. Article 30 GDPR – Records of Processing Activities

There will be a significant change to records of processing activities. The GDPR does not distinguish between internal and external records anymore. Dental practices will now require only one kind of record: an on-demand internal record. A practice will be required to maintain records of the entire practice’s processing activities internally. Moreover, these will need to be available to supervisory authorities upon request.

To do list:

– Consider implementing measures to prepare records of your practice’s processing activities.

– Consider introducing a full compliance program for your practice incorporating features such as regular audits, HR policy reviews, and training.

4. Articles 37-39 GDPR – Data Protection Officer

You will be required to appoint a Data Protection Officer (DPO) if the dental practice is:

– A public authority (except for courts acting in their judicial capacity) (Art. 37(1)(a));

– Carrying out systematic monitoring of individuals on a large scale (Art.37(1)(b)); or

– Carrying out processing of special categories of data or data relating to criminal convictions and offences on a large scale (Art.37(1)(c)).


Dentists providing NHS care will be regarded as public authorities. Thus, even a small NHS practice will require a DPO. It is anticipated that the Clinical Commissioning Groups (CCGs) will be providing Data Protection Officers in primary care settings.

If you don’t want to recruit, it will be possible to appoint a single DPO to act for a group of practices, provided that a DPO is easily accessible from each establishment. Alternatively, you can contract the services out.

For those organisations to whom the requirements do not apply, they may still choose to appoint a DPO.

To do list:

– Assess whether your practice is obliged to appoint a DPO.

– Consider who will be your DPO.

– Consider whether your practice should appoint an internal or external DPO.

– Compile information on data processing activities within the practice.

– Ensure that those to whom you have designated responsibility, their duties do not lead to a conflict of interests of their own role.

5. Article 20 GDPR – Data Portability

The rights of individuals under GDPR are the same as those under the Data Protection Act 1998 with a significant enhancement of the right to data portability. Under the GDPR, patients will have the right to receive the personal data which they have previously provided in a ‘commonly used and machine readable format’, and have the right to transmit that data to another controller. This information will need to be provided free of charge, thus removing the previous £50 subject access fee for dental records. This will apply only to data processed by automatic means, and not to paper files.

To do list:

– Consider whether the technical capabilities of your practice will comply with data portability requests.

– Make your patients aware of their right to data portability. Does your company send out e-bulletins and/or newsletters? Let your subscribers know by including a short paragraph at the end of the article.

6. Article 84 GDPR – Penalties

Any practice in breach of GDPR can be fined up to 4% of annual global turnover (not profit) or €20 million – whichever is greater. This fine can be imposed for the most serious infringements, for example for not having sufficient customer consent to process data. The practice can also be fined 2% for not having their records in order, or for not notifying the supervising authority and data subject about a breach, or not conducting impact assessment. In the case of a breach, practices will be required to report the breach to relevant authorities within 72 hours. The practice will be obliged to give full details of the breach and offer proposals for mitigating its effects.

What next?

You should be preparing for the new requirements that will affect your practice. Considering the above steps in the context of your practice is the very first step you can take in order to prepare for the upcoming legal changes. Do not assume that you will be able to claim innocence through ignorance of the rules – the whole point of the GDPR is to keep your company better protected and able to deal with breaches in security. If preparation is approached in the right way, your practice will be well-prepared in time for the regulation coming into force, and your business will be secured for years to come.

We will be running a workshop on 22nd February aimed at dental practices to help them prepare for the new GDPR requirements.

©Laura Pearce, JFH Law, GDPUK Ltd, 2018.
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It has long been recognised that dentistry is a stressful profession. It has long appeared in the list of “top ten” most stressful jobs, along with teaching, prison officer and working in the emergency services. But now it is official; the British Dental Association has conducted research into stress levels in the profession. They have found that a shocking 39 per cent of community dentists surveyed and almost half of GDPs reported high levels of stress. This is compared to an average of around 15 per cent for all British workers. 

High levels of stress can have a very negative impact on the running of any dental practice. Ensuring staff are happy and relatively stress free, will lead to better productivity and higher morale in your workforce. However, there are additional pitfalls to ignoring staff stress levels as work related stress can lead to a claim being issued against the practice for damages. 

Managing work place stress

The BDA’s Evidence to the Review Body on Doctors’ and Dentists’ Remuneration for 2017/18  found that 51% of the dental profession would not recommend a career in dentistry. The same report found that both practice owners and associates considered their morale to be ‘low’ or ‘very low’ at 29 per cent and 32 per cent respectively.

In response the BDA is undertaking research on dentists’ well-being at work and why they experience ‘burnout’, but this does not help you tackle the problem in your practice now.

What is Stress?

According to the Government stress is a reaction to a person’s circumstances and surroundings. It is not an illness of itself but often causes other illnesses. Its effects are shown in a number of different ways, both physical and mental. For example, lack of concentration, sleeplessness, low mood, susceptibility to colds/flu, skin irritations, the list goes on.

It is important to remember that there is a difference between pressure and stress. Pressure at work can be healthy, as can some level of stress. However, too much pressure can cause stress to become harmful to health and employees will react differently to the pressures they face.

What duty does a practice principal owe to their workforce?

Employers have a common law duty to take reasonable care of the health and safety of their employees. If an employer breaches that duty, and that breach causes the employee a personal injury, the employee can bring a claim for damages.

A personal injury can include stress. However, the injury must be a medically recognisable psychiatric injury. Therefore, not all cases of work related stress will give rise to a claim for damages.

In order to succeed in such a claim, an employee will need to prove the following:

1.      That the employer breached the duty of care;

2.      That the breach caused the employee injury;

3.      That the injury was foreseeable.

It should be noted that whilst we have used the phrase ‘employee’ above, the protection will extend to workers and could even extend to a self-employed associate, if they can show that they are owed a duty of care by the practice.

Easton v B&Q [2015]

Hatton v Sutherland is the leading case in personal injury claims relating to stress at work. The court re-visited the test in Easton v B&Q and also gave some practical advice in dealing with such cases.

Mr Easton was a manager at a B&Q store. Prior to this he had worked as a manager for 10 years at a large supermarket chain. Mr Easton alleged that as a result of B&Q’s breaches of the duty of care he had suffered work related stress. Mr Easton further claimed that the way his return to work was handled, following a period of stress related ill health, caused a relapse of his condition.

There was no dispute from B&Q that Mr Easton had suffered a psychiatric illness. The issue in this case was whether the injury was foreseeable.

The key findings of the court were as follows:

1. Lack of promotion

The court recognised that Mr Easton’s condition affected his perception of the events that had taken place. However, the court found Mr Easton had persuaded himself that a promotion was in line and this could not therefore be a breach of duty. The court commented that employees should try to look at events objectively.

Tip: employers who can show they have acted fairly and in line with any policies are unlikely to be in breach of the duty of care. If an employee has taken exception to a decision you have made, try sitting them down and clarifying why it is needed, rather than saying ‘I am the boss, my decision is final’.

2. Removal of night time staff

The court found that the effects of this were not as dramatic as Mr Easton made out and that Mr Easton failed to make any complaints about this to his employer at the time.

Tip: An employer cannot be expected to foresee an injury if it is not aware of the concerns the employee has to begin with. However, if a member of staff raises any complaints with you, you should take them seriously and deal with them accordingly, even if that means explaining to the employee why their concerns are invalid.

 3. Rejection of a grievance

Although not in fact argued by Mr Easton, the Court took the opportunity to clarify that when an employer rejects a grievance, as long as a proper procedure was followed, this cannot be a breach of duty simply because the employee does not feel justice has been served.

Tip: this is often an issue for employers. Employees not agreeing with a grievance outcome and feeling they have been dealt an injustice. However, as long as you have properly investigated the issues and provided a reasoned response to the same, it is unlikely you will be criticised.

4. No knowledge of stress

The court found that B&Q had no knowledge that Mr Easton was suffering from stress. The court took into account Mr Easton’s previous role as manager for a large supermarket chain and concluded that he was therefore capable of doing the role. In the absence of Mr Easton informing B&Q of his concerns, B&Q were not on notice of any issues.

Tip: An employer is entitled to take what his employee tells him at face value, unless there is good reason to think to the contrary. Therefore unless an employee reports to you they are feeling stressed, you do not need to take action. However, if they do you should take heed and ensure you have dealt with any concerns the employee raises.


Whilst work related stress should be taken seriously, employees need to show that the employer did know, or should have known, that their actions would cause an injury (the foreseeability test) in order to succeed in a claim. Most claims fail on this basis, as it is a high threshold.  A common misunderstanding by employees when arguing a claim for personal injury is that simply because they have suffered from work related stress, that the employer must be liable.

Irrespective of this, as an employer you will want to ensure your staff are as happy and stress free as possible. There are a number of ways you can do this:

1.       Appraisal process;

2.       Having an ‘open door’ culture so employees feel safe talking to you;

3.       Undertaking staff meetings so staff feel part of the practice;

4.       Ensuring changes to procedures are properly explained before they are implemented, to help staff understand the reasons for them.

Also remember that whilst an employee may not have a stress at work claim, they may be able to bring claims for disability discrimination or harassment, unfair or constrictive dismissal or breaches of health and safety requirements.

If you have queries regarding the content of this article please contact Laura Pearce, Senior Solicitor, on 020 7388 1658 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it.

©Laura Pearce, GDPUK Ltd 2017
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The question posed to the court was whether an employer can be vicariously liable for sexual assaults perpetrated by an independent doctor?

Between 1968 and 1984 Dr Bates was engaged by Barclays Bank to carry out medical examinations on potential and existing employees of the bank. Barclays at that time were undergoing a positive drive to recruit women into the bank and as a result a number of the individuals assessed by Dr Bates were women, some as young as 16.

Accusations against Dr Bates

The employees would go to Dr Bates’ home, where he had created a purpose-built treatment room. He would see the patients on their own with no chaperone present. They were required to undress to their underwear. The allegations against him included inappropriate breast examinations and digital vaginal or anal contact. Following the examination, Dr Bates would send a pro-forma document setting out the details of the examination to the bank. If the report was satisfactory the individual would be offered employment.

Dr Bates died in 2009, however in 2013 a police investigation was carried out which concluded that had he been alive, there would have been sufficient evidence against him to warrant a criminal prosecution.

Barclays’ vicarious liability

In 2016, 126 claimants sought damages against Barclays Bank in relation to the sexual assaults they had suffered. They claimed that the bank utilised the services of Dr Bates in the role of medical examiner in order to satisfy themselves that the person was fit to work for the bank and to confirm that they would be suitable for the life assurance policies in place.

In July 2017, the Hon Mrs Justice Davies ruled that, yes, the bank was vicariously liable for the actions of its self-employed contractor. The reasons she gave were as follows:

A two-stage test must be considered to determine whether or not a vicarious liability exists:

  1. Is the relevant relationship one of employment or “akin to employment”?
  2. If so, was the tort sufficiently closely connected with that employment or quasi employment?

When is a relationship “akin to employment”?

When the following criteria are satisfied:

– The employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability;

– The tort (act) will have been committed as a result of activity being taken by the employee on behalf of the employer;

– The employee’s activity is likely to be part of the business activity of the employer;

– The employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee;

– The employee will, to a greater or lesser degree, have been under the control of the employer.


The bank argued that Dr Bates was an independent contractor, and that he bore personal liability for the acts. Had the claim been made much earlier his personal estate would have been able to settle the claims.


However, to determine whether the relationship was “akin to employment” the judge applied the five criteria set out above:

– The judge concluded that whilst Dr Bates would have had indemnity insurance, that insurance would not have covered him for cases of sexual assault; his estate was distributed many years earlier.

– Employment was conditional upon the bank being satisfied on the basis of the medical examinations that the applicant was medically suitable for service. Dr Bates was the chosen doctor of the bank and he used their stationery.

– The purpose of the examination was to enable the bank to be satisfied that a potential member of staff would, health wise, be an effective member of the workforce. This was an intrinsic part of the business activity of the bank.

– The bank directed the employee where to go and gave no freedom of choice. They directed the doctor to undergo an examination, including a chest measurement! Many of the claimants, who were as young as 15 and 16 saw the doctor alone in his room and were asked to remove their clothing. The judge concluded that the bank created the risk of the tort (sexual assault) taking place.

– The fact that Dr Bates organised his own diary and carried out other medical activities did not negate the argument that he was under the control of the bank at the relevant time. The fact that the assessment took place at his home rather than the bank made no difference to this conclusion.


Tort closely connected with the employment

When considering stage 2, she concluded that the sexual assaults occurred during the course of a medical examination which the bank required the applicants to undertake for the purposes of securing employment. Dr Bates was trusted to do the work and placed him in a position to deal with the employees. This gave him the opportunity to abuse his position. The abuse was inextricably interwoven with the carrying out of his duties.

Would a practice principal be vicariously liable for the tortious acts of their Associates?

In short, the answer is yes. Whilst many associate dentists prefer to maintain their self-employed status for tax purposes (the Tooth Counsel has blogged on worker v self employed status on a number of occasions) the relationship that they have with the practice is almost entirely “akin to employment”. It is now common practice for associate dentists to appear to members of the public to be an integral part of their dental practice, bookings are made and diaries organised by the practice, patients and referring dentists are introduced to the associate via the practice, uniforms are often worn and the practice systems and stationery utilised. If an associate dentist commits an actionable tort against a patient or other member of staff whilst engaged by the practice, then the practice itself would be liable.

Whilst the principal of the “independent contractor defence” remains intact, this judgement sees the court extending the scope of vicarious liability significantly. Whilst the facts of the above case are extremely unlikely to arise in today’s society, particularly in a dental setting where nurses are present at all times when a dentist is seeing a patient, it is a valuable lesson to reinforce the view that the employers should not be complacent about the potential for poor behaviour by their independent contractors and the liability that may follow.

If you have any questions about this blog, or require advice and assistance in relation to your liabilities within the work place please feel free to email Julia Furley on This email address is being protected from spambots. You need JavaScript enabled to view it., or call us on 020 7388 1658.

©Julia Furley, JFH Law LLP, GDPUK Ltd, 2017
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