Once upon a time someone started to blow a bubble.

All Pixar films have a simple story structure which can be summed up as:

“…Once Upon a Time…

Every Day…

One Day…

Because of that…

Because of that…

Until Finally….”

So if Pixar did the story of recent Dentistry, here’s the movie storyline.

Once upon a time nearly every new dentist went and worked as an associate in General Dental Practice with an NHS contract.

Every day, 5 days a week, they worked for 8 hours and had an hour for lunch. Some of them were better than others and some were worse. Some were faster than others and some were slower. The faster they worked the more they earned. Every month encouragement came from the practice owners, “get your backside in the air and get your gross up”. Every dentist in every practice did the same thing - they repaired broken and diseased teeth. Some liked to spend half a day a week making dentures or braces or using a scalpel - but that was just a diversion from drill’n’fill.

At the end of the month the owner let the associates keep half of what they had earned. This was often a lot of money for a young, newly qualified person. Their friends from university who had studied medicine, accountancy and the law couldn’t understand how dentists could justify the amounts they earned when they were so young and inexperienced and were envious. Secretly many young (and old) dentists agreed, but they couldn’t bring themselves to suggest a change. These were the golden years, there was lots of disease, plenty of patients and the Prime Minister’s purse was bottomless. In fact there were too many patients so in some places people queued to have their teeth out or tried to do it themselves, or so the TV said.

One Day the Prime Minister, Mr Blair, an ex-lawyer, said, “This is not good enough, something must be done”, and he decided that market forces must be applied. But firstly he made the NHS the National Religion and everybody must be an acolyte, for to speak against the NHS was sacrilege. Then he applied the rule of supply and demand, so he opened up lots of new dental schools where intelligent young people could become noviciate monks and nuns of the NHS. Although the words “private” and “dentistry” were considered blasphemy “private” and “university” were compulsory so the novice dentists were made to pay for the privilege of half a decade of confrontation and humiliation. Saint Tony also sent messengers out to all corners of Europe welcoming dentists to England and Wales where the NHS was the envy of the world and the dental streets were paved with gold.

Next his Grand Vizier, HenHouse and his Lord High Chancellor, Broon, said that the purse was closed, there would be no more money, each dentist must make do with what they had last year and the year before that.

Because of that even the fastest of new dentists were not able to get their backsides in the air and the slow ones earned the same as the fast ones. The practice bosses saw that where there had been queues of patients there were now queues of new dentists who had to repay their loans and were competing to work in the NHS churches. Some of these bosses saw this as an opportunity and competed to see who could pay the least. Some were allowed to keep a quarter or a third of what they earned. In his retirement villa St Laurence de Lando looked down, smiled broadly and said, “I told you so”.

Because of that lots of young dentists said, “We must buy our own businesses. We shall become dental entrepreneurs, what ever that is.” So they hocked the family silver, mortgaged their future earnings and sold their soul to the NHS (praise be its name), and in the subsequent sales frenzy this let St Laurence’s contemporaries buy much bigger villas on golf courses than they had ever dreamed possible. “We are the bosses now” trumpeted the new owners, “we shall buy lots of practices and screw down those associates who were not clever dental entrepreneurs like us. Then we shall sell out at the top of the market and make a shedload of cash.”

Meanwhile many quiet, thoughtful young dentists took a long view and worked at their skills. They saw that in the long term the religion would be exposed for the sham that it was and patients would choose between private practices with personal service and Nash clinics where they chose a number and waited their turn for the announcement, “dental cubicle number thirteen please.”

Until finally, one day the bubble burst, NHS dentistry was handed over, lock stock and barrel, to Tesco and many churches became empty shells, a testament to a great failed experiment.

Image credit - Isabelle Acatauassú Alves Almeida  under CC licence - not modified.

Every dental practice knows that it can take years to build up a loyal patient following but a matter of days for this to be destroyed by an ex-associate. Normally, a practice seeks to protect its goodwill by adding restrictive covenants into an associate, or even an employee, contract.

However, will your covenants stand up in court if you need to enforce them further down the line?

Most practice owners are under the impression that if a covenant is in the contract and the ex-associate breaches that covenant then they will be able to enforce the agreement. However, this is simply not the case.

Enforceability 

In order for a restrictive covenant to be enforceable you must show that:

1. You have a legitimate business interest that needs protecting; and
2. The protection is no more than necessary in all the circumstances.

A patient base is more than likely to be a legitimate business interest, as it provides the main income for any dental practice. However, you must remember patients are free to choose who treats them and so you cannot completely restrict an associate from treating those patients.

When determining if a covenant is necessary a court will consider the reasonableness of it taking into account factors such as; the duration; the geographical area covered; the patients it refers to and the seniority of the person who is subject to it. This is not an exhaustive list. Given that the courts will consider each case on its own merit, it is difficult to provide specific advice in this article on each of these points.

The courts are very wary when it comes to enforcing restrictive covenants, as they do not want to restrain trade and prevent a person from being able to earn a living. Therefore, if a clause is drafted too widely, without consideration for the business interest you are seeking to protect, it is unlikely that it will be enforceable.  

It should be noted that a court will not amend a clause to make it more reasonable and therefore enforceable; they will simply reject it altogether, leaving you totally unprotected.

You therefore need to carefully consider which covenants are required to protect your business interest, and that the scope of those covenants are neither too wide nor too narrow. 

Types of Covenants

The main types of restrictive covenants are:

Non-solicitation. This prevents a positive act by the associate of contacting former patients of the practice, or making an initial approach, with a view to obtaining their business. Merely informing a patient that they are leaving, and even providing their new address, is unlikely to be seen as solicitation.

Non-compete. This prevents an associate working for a direct competitor. Such clauses are harder to enforce than non-solicitation clauses, given the courts reluctance to restrain trade. However, one must bear in mind the skills of a dentist and the time it takes to build up the goodwill of a practice. We would therefore recommend adding such a clause to a contract, providing it is well drafted.

Non-dealing. This prevents an employee dealing with any customer or potential customer of a business. Given that a patient is free to choose who treats them such a clause is likely to be unenforceable in an associate contract.

Non-poaching. This prevents an associate from taking staff with them to a new practice. The idea behind this covenant is to ensure a stable workforce. In the dental industry, a practice will want to ensure that Specialist Dentists are not enticed to a new practice by a member of staff who is leaving.

You can use just one restriction or you can use a combination, depending on the business interest you are trying to protect.

Practical Tips
The most important piece of advice we can give you is not to use standard clauses for all staff members no matter what their position and situation; this is giving no consideration to the test ‘necessary in all the circumstances’.

You can create standard clauses for each level of staff, but you also must ensure that when you offer a new contract to a new employee or associate you consider whether the covenants are reasonable in their circumstances. For example, if you know an employee cannot drive and you live in a small town with no public transport, stating that this employee cannot work in that town is unlikely to be reasonable; especially if a non-solicitation clause could be used in the alternative.

You need to be able to explain why the covenants are for a certain period, cover a specific geographical area or are in relation to a set of patients. It is also worth periodically reviewing the covenants to ensure they are still fit for purpose (although see below in relation to seeking to amend a contract whilst it is still in force).

Normally, restrictive covenants will be contained within the contract. This means an associate has to agree to them in order to secure work. Consider instead having a separate document containing the covenants and paying for the associate to obtain legal advice on them. If an associate has been advised as to the effect of the clauses and signs to confirm their agreement, this is likely to make them more enforceable. However, you will still need to bear in mind the above tests and ensure the covenants are necessary; this will not give you carte blanche to insert anything into the contract.

If you seek to change the covenants part way through employment, recent case law has confirmed that unless you give some consideration to the other party for signing the new covenants, such as a pay rise, the covenants may not be enforceable even if signed.

No article can ever replace legal advice, and this is even more true in the case of restrictive covenants, which are highly specific to the facts and circumstances at hand. If you are considering using restrictive covenants, we strongly recommend that you seek legal advice.  As the text above demonstrates, merely having them in place will not necessarily protect you.

Up to 86% of patients are affected by food becoming trapped under their dentures.¹ This can lead to discomfort and can cause bad breath.

Results have shown that Poligrip® denture fixatives have the ability to seal out food particles helping to reduce gum irritation² and lead to increased levels of confidence, comfort and chewing efficiency.³

The Poligrip® range of fixatives include:

• Poligrip® Flavour Free Fixative Cream

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For further information on Poligrip® and dentures, why not complete the Poligrip® distance learner module and earn up to 1.5 hours of CPD. Simply visit            www.gsk-dentalprofessionals.co.uk today!

-ENDS-

References: 1. Data on file, GSK, Canadian Quality of Life Study, 2005. 2. GSK Data on File. Murphy et al, 2012. 3. GSK Data on File. Durocher et al, 2008

Trade Marks are owned by or licensed to the GSK group of companies.

CHGBI/CHPOLG/0018/16

ESCARCEL, a recent pan-European study, amongst 3,187 subjects aged 18-35, concluded that 1 in 3 young adults suffer from tooth wear.¹ In a survey of 200 dental professionals completed in 2013, 84% said they see signs of erosive tooth wear on a weekly basis and 86% felt the condition is on the rise.² This emphasises how common erosive tooth wear is throughout the population.

To help raise awareness of the risk factors for tooth wear associated with eating and drinking acidic foods and drinks found in today’s diet, Pronamel® are offering dental professionals access to a specially developed online module. Topics include identifying signs of tooth wear, condition management advice, the use of the Basic Erosive Wear Examination tool (BEWE) and the role of Pronamel® in protection from the effects of acidic diets.

The Pronamel® online CPD module is available in an easy to use format which is free of charge. Available 24 hours a day, you can access this module whenever is convenient. Completion of the module can contribute up to 1.5 hours towards your verifiable CPD.

In addition, it provides information on the Pronamel® range and how it can help protect patients from the effects of erosive tooth wear.

Visit www.gsk-dentalprofessionals.co.uk/pronamelcpd1 to complete the module now!

References:

1. Bartlett DW et al. J Dent 2013; 41: 1007-1013

2. GSK Data on File, 2013

Trade marks are owned by or licensed to the GSK group of companies