On 16th June 2022 the Employment Appeal Tribunal (EAT) handed down its decision in a case concerning a dentist claiming worker status. This is another in a long line of cases where dental associates have claimed that they are not ‘self-employed’, but instead have worker status.
There has understandably been concern amongst the dental profession that this decision will significantly impact the future of NHS dentistry. However, it is important to bear in mind that the EAT did not determine that the associate was a worker, only that the original employment tribunal’s determination that she was not had been incorrectly reasoned. The case will now return to the employment tribunal for rehearing.
Crucially, this is not a current case, in that the associate in question was working under a 2010 version of the BDA contract; a contract that since has been updated on at least two occasions.
Whilst some important points have been raised by the EAT, which may require dental practices to consider their current business model, it is important to bear in mind that the EAT has not been asked to consider the current BDA contract, which no doubt was updated as a result of the spate of cases on worker status in recent years.
In this article we set out the facts of the case and comment on the EAT’s decision; as we represented the dental practice in this matter, we have an insight into the facts and findings.
Before we review the case, it is helpful to remind ourselves of the test for worker status. A person is a worker if they work under;
- a contract of employment, or
- any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual;
The latter is often referred to as a ‘limb B’ worker. You also have to bear in mind that a person can be self-employed for tax purposes, but a limb B worker for employment purposes.
What the tribunal will ask itself:
- Was the dentist required to perform any work personally? If the answer to this questions is no then the dentist is not a worker. If the answer to this question is yes then the tribunal will ask;
- Was the practice a client of the dentist and was the dentist in business in their own right? If the answer is yes then the dentist is not a worker. If the answer is no then the dentist is a worker.
When looking at the first point, the courts will look at the substitution/locum clause and whether there is any ‘fettering’, or limitation, on that clause. The more fettering there is, the more likely the dentist is required to perform the work personally.
For the second point the tribunal will consider how much control the practice has over the associate; how much the associate is integrated into the practice.
The dental practice is a corporate with locations across the country. The dentist had originally worked in Oxford, before moving to their Kensington practice 2021. The dentist was working under a contract that said:
In the event of the Associate’s failure (through ill health maternity paternity or other cause) to utilise the facilities for a continuous period of more than 14 days the Associate shall use his best endeavours to make arrangements for the use of the facilities by a locum tenens, such locum tenens being acceptable to the Primary Care Trust and the Company….
The dental practice argued that this locum clause meant the dentist was not required to provide the services personally. Whilst the dentist had never sent a locum herself, evidence was provide to the tribunal of other dentists within the business utilising the locum clause, for example for sickness and maternity leave.
However, the contractual term only imposed an obligation to send a locum after 14 days of not utilising the facilities. The practice in response gave witness evidence that dentists within the business, as across the profession, were entitled to send a locum at any time.
The tribunal accepted that the locum clause meant the dentist was not required to perform the services personally and her claim was rejected.
By the time the case came before the EAT, the Supreme Court had handed down its decision in Uber. Whilst the Court of Appeal overall decision was the same. The Supreme Court made it clear the test is a statutory test not a contractual test. The focus should be on the reality of the of the working relationship, not the contractual one. Whilst the contract can be helpful, the courts must look at what happens day to day.
The EAT relied on this case when determining this appeal and found that the tribunal judge had relied on contractual interpretations over statutory provisions.
The EAT went on to find that the tribunal judge was wrong to find there was no fettering on the right of substitution in this case. They considered the following were such fetters:
- the contract only allowed the dentist to send a locum after 14 days;
- the locum must be acceptable to the practice;
- the fact that elements of the agreement were due to regulatory requirements (registration with the GDC, being on the performers list) this did not prevent them from being taken into account when considering the fetters on the right to send a substitute;
- the dentist had never sent a locum, which was relevant to the issue of what the true agreement was between the parties.
In the opinion of the EAT, the above all amounted to fetters on the right to send a substitute, meaning the dentist was required to perform the services personally.
The EAT did not consider the second part of the test, which has been remitted to the tribunal to consider the point by a fresh panel. This means the dentist has not yet been found to be a worker; only that she was required to perform the services personally.
The BDA has since updated its template to state:
- may at any time; and
- shall, if they are unable to utilise the facilities for a continuous period of more than 14 days, use their best endeavours to make arrangements for the use of the facilities by a locum tenens.
The question now is whether the above amendment is sufficient to avoid worker status.
Julia Furley, Barrister and Laura Pearce, Senior Solicitor
© JFH Law