By Chris Tapper

One working day in April 2018, precisely at 4.50pm, ten minutes before the unseemly scramble by the dentists to get out the door to avoid the dry-retching of the nurse’s as they clean the filters out, I was presented with a sheet of paper.

A nurse delivered the A4 sheet with a flourish and the warning that our corporate practice manager required my signature before five, since she was going away for a few days.

A space had been left for me to make my mark and I noticed all my colleagues had already signed the sheet, with that day’s date. My colleagues had all apparently attested to the fact that they had completed in-house training in needlestick injuries, they had all read the practice policy on needlestick injuries, and they had then participated in a ‘facilitated practice discussion’ about needlestick injuries. The top of the sheet stated that all the training and accompanying requirements had to be completed by the end of January 2015.

I certainly hadn’t completed the in-house training in question personally and definitely hadn’t noticed a facilitated practice discussion, unless I missed it because I was engrossed in Facebook at the time, doing a fun quiz on ‘is your line manager a homicidal psychopath?’ (My answers were probably of great value to Cambridge Analytica and the ‘Leave’ campaign).

More interestingly, three of my colleagues hadn’t even been employed by the corporate around the date mentioned and I figured that two of them couldn’t possibly have done the training since they are new trainees, though they MAY have read the policy during induction. One of them admitted they had only signed the policy sheet “To avoid a lot of hassle.”

I dismissed the nurse with an “I can’t sign it since I haven’t done the training,” to be met a few minutes later by a text from the head nurse with a link to a video on, presumably, needlestick injuries.

The upshot was that I actually went online and found the subject on the website of a training organization I occasionally use, and produced a CPD certificate before six and signed the form anyway.

Yup, I wimped out rather than be met with the ‘I’ve Been Bagging Angry Wasps Into A Sack With My Bare Hands Face’ of my corporate practice manager.

Of course, the nub of the above was that someone in management (I don’t know at what level) had fouled up and had realised that CQC requirements had not been met. In order to meet requirements, staff had been browbeaten into fraudulently signing a statement that would give the authorities the impression the company was complying with regulations.


And the reason I have outlined the above?

Corporate Bullying

At this time of year, independent dental providers are bidding for contracts against the corporates and increasingly, they are being undercut by the latter, who use their low wage, high trainee workforce ratio and dubious interpretation of NHS regulations to undercut independent practices.

NHS commissioners are desperate people. They need to secure services at the lowest possible rate and the corporates present them with exactly what they need to satisfy the number-crunchers at the Department of Health - high numbers at low prices. To quote from a popular 70’s sitcom, “Never Mind The Quality, Feel The Width.”

It’s a subtle form of bullying, but it’s bullying nonetheless. The Independent practices cannot possibly hope to compete on an equal footing with companies that run their practices on trainee nurses and (largely) EU dentists willing to work for £8 to £9 per UDA until Brexit is put into effect.

It’s the equivalent of being elbowed in the face by the school thug as he pushed into the lunch queue.

I have worked for a corporate for over five years after selling my own practice, and during that time we have had a huge turnover of nursing staff. As nurses qualify, they leave within months for the independent sector - not once has a qualified nurse been replaced with a qualified nurse. The company just takes on another trainee, and often the £9-per-UDA associate finds him/herself providing the in-surgery training.

The playing field is definitely not level. Low quality materials, poorly maintained equipment and restrictions on which laboratories can be used all contribute to the ‘Poundstretcher’ mentality. At one point last year, we had absolutely no x-ray facilities while head office sourced the cheapest scanner possible.

Unfortunately the commissioning Area NHS Teams are either oblivious to what is happening in the corporates, or are turning a blind eye. And by no means is my corporate the worst offender - I’ve seen worse with my own eyes. As corporates go, mine is considered to be one of the ‘good guys.’

So what is to be done? Your guess is as good as, although I would LOVE to see widespread and coordinated unannounced CQC inspections nationwide at 9.00am. Or else a mass walkout of the Nash by the independents? The corporates definitely wouldn’t cope - few of them hit their contracts annually anyway.

As for me, I’m off to Poundland.

HMRC has written to dental associates

On the 20^th April 2017 HMRC updated their ‘Internal Status Manual’ regarding the employment status of dentists. This made clear that where dentists are practicing as associates in premises owned and run by another dentist and are subject to a BDA or DPA approved associate contract, and the terms are followed, then the associates income will be assessed under ‘trading income rules’ and not as an employed income. In short, associates are self-employed and as such will be liable for Class 2/4 National Insurance, not Class 1 National Insurance. Despite changes bought into effect by the NHS General Dental Services Contract, which changed the way that dentists were paid, allowing for less fluctuation in income, HMRC were of the view that as long as associates continued to pay their share of laboratory fees and follow the terms of their associate agreements, then they will remain self-employed.

So what has changed?

Over the last 6 months there have been a number of landmark legal cases before the UK courts. Laura Pearce of JFH Law wrote in June last year that the tide was turning for dental associates following the Court of Appeal decisions in the cases of Pimlico Plumbers and City Sprint, which were hot on the heels of the earlier decision in the Uber in October 2016.

These cases all revolve around the ‘gig’ economy, where companies have traditionally relied upon casual or flexible labourers, who get paid for the work they do, rather than a weekly or monthly agreed salary. These people are often categorised as independent contractors, but the legally reality can be very different.

The Court of Appeal has ruled that despite the fact that the individual’s contracts defined them as self-employed, and certainly in the case of the Pimlico Plumber, they had benefitted financially from the arrangement for many years, they were in fact ‘workers’ not ‘self-employed contractors’. This means that they are entitled to the national living wage, holiday pay and statutory sick pay and the right to pension auto enrolment.

One of the key definers for whether an individual is a worker or self-employed is whether they have an unfettered right to send a substitute. If a dental associate is obliged to undertake the work personally, and can only send a substitute in the event that they are unavailable (for example when they are unwell or on maternity leave), or the right to send a substitute is dependent upon the consent of the practice owner, then it is highly likely that they will be defined as a worker by the employment tribunals. Pimlico Plumbers have appealed the judgement to the Supreme Court and judgement is currently reserved.

However, could an associate dentist go further and argue that they are an employee; thus obtaining all of the benefits of employment, including the right not to be unfairly dismissed? As no associate dentist has yet challenged the status quo within the Employment Tribunal it is not possible to answer this categorically. It will depend on the nature of the working relationship, the mutuality of the obligation between the parties; i.e. is the dentists obliged to offer work to the associate? Is the work done within fixed hours at a price fixed by the Principal? Finally, is the associate obliged to undertake that work themselves? If the answer is yes to all of these questions, the dentist could well be an employee.

What does this mean for tax purposes?

To date, if an individual is defined as a worker by the Employment Tribunal, that has not automatically affected their status as ‘self-employed’ for the purposes of paying their taxes. Indeed there have even been circumstances where the Tribunal has determined that an individual is employed for employment law circumstances, but self-employed for tax purposes. As such a ‘worker’ and an ‘employee’ can be exempt from PAYE and pay Class 2/4 NI contributions.

In 2017, HMRC had clearly taken the view that regardless of the personal nature of the services offered by dentists, they were content to allow them to continue as self-employed. However, the indications are that this is likely to change in the not too distant future. There is little benefit to HMRC under the current arrangement, and they are likely to see a change in associate dentist’s status as an opportunity to increase NI contribution and tax revenues. Furthermore, with the Government’s current focus on shifting responsibility of pension provision away from the state onto third party employers, it is likely that the writing is now on the wall for many associates self-employed status.

This has major implications for practice owners. Whilst any change in status for the purposes of HMRC is unlikely to be retrospective, bearing in mind their current guidance, this may open the floodgates for claims from associates against their principals before the Employment Tribunal. With the tax benefits of self-employed status gone, associates may think it’s worth arguing that they have been workers or employees for years. They can then claim back unpaid holiday since the commencement of their employment and demand enrolment in workplace pension schemes.

If you are concerned about your employment status or want to discuss the content of this dental bulletin contact Julia on This email address is being protected from spambots. You need JavaScript enabled to view it. or call us on 0207 388 1658.

Julia Furley, Barrister and Partner