New Case Threatens Employment Status Of Associates

New Case Threatens Employment Status Of Associates

The self-employed status of associates may have survived for decades, but there have been regular threats. A recent court case will be of interest and the judgment has potential wide-reaching implications for thousands of dentists.

There were serious concerns in the UK dental world following a key judgement last year, on the status of Uber drivers. The courts decided that they were ‘workers’, and entitled to rights such as the minimum wage. Ubers defence had been that their contract characterised workers as self-employed. The Supreme Court disagreed. The key question is whether the person is “subordinate and dependent” on a business. If they are, then they are a worker, regardless of how their contract classifies them.

Hannah Mathews, of Doyle Clayton Solicitors, writing in Lexology, summarised the case, which involved an associate dentist.  

Ms Sejpal worked as an NHS dentist at Rodericks Dental Practice in Kensington. She claimed that the dental practice unlawfully discriminated against her because of pregnancy or maternity. Her entitlement to protection depended on her being a “worker” within the meaning of section 230(3) Employment Rights Act 1996 and the equivalent provision of the Equality Act 2010. This required that she worked under a contract with the dental practice under which she agreed to perform work personally and that the dental practice was not a client or customer of a business carried on by her. Ms Sejpal did not assert that she was an employee for the purpose of Employment Rights Act 1996.

The employment tribunal ruled that Ms Sejpal was not a “worker” and as a result her claims were dismissed. Ms Sejpal was granted leave to appeal to the Employment Appeal Tribunal.

The Employment Appeal Tribunal ruled that the employment tribunal did not adopt a “sound framework for the analysis of this case” and adopted an “erroneous approach” to its analysis of the agreement between Ms Sejpal and the dental practice.

Ms Sejpal’s appeal succeeded on five of the six grounds advanced at the hearing:

  • Ground One (Written Terms): The employment tribunal erred in its approach to the written terms of the contract between the dental practice and Ms Sejpal.
  • Ground Two (Mutuality of Obligations):
  • Ground Three (Personal Service): The employment tribunal erred in deciding that Ms Sejpal had an unfettered right of substitution and therefore that she did not satisfy the requirement to provide personal service. Ms Sejpal did not have an unfettered right of substitution because she was not entitled to provide a locum before a 14 day period of absence had elapsed and her contract contained an express requirement that the replacement must be acceptable to the dental practice
  • Ground Four (Control) and Ground Five (Integration): The employment tribunal failed to assess the questions of (1) whether the Ms Sejpal carried on a profession or business undertaking and (2) whether the dental practice was a client or customer of hers and the concepts of control, integration and/or subrogation, (this is the assumption by a third party of another party’s legal right to collect a debt or damages) were potentially relevant to this analysis.

The judge remitted two Outstanding Questions to a different employment tribunal to consider. If that employment tribunal rules that Ms Sejpal is a worker, she will be entitled to proceed with her claim of unlawful discrimination.

The findings will have significant implications for NHS Dentistry. Ms Sejpal’s relationship with the dental practice is common to most NHS dentists and her associateship contract was based on a standard British Dental Association template document. Should she succeed, affected dentists would likely be entitled to protection from discrimination and to holiday pay.

Image atribution https://pix4free.org/  Creative Commons License 3 - CC BY-SA 3.0

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