Associate Agreements: Does Yours Need An Urgent Check-Up?
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- Published: Tuesday, 13 December 2022 07:35
- Written by Guy Tuggle
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The vexed question of the status of associates has returned to the spotlight as the British Dental Association (BDA) has unveiled new associate agreements that acknowledge the existence of three tiers of employment status operating in the UK.
- Employees - whose contract of employment with their employment guarantees them many rights including holiday pay and unfair dismissal.
- Workers – these are self-employed contractors who pay their own tax and NI but who have agreed to undertake work for an employer which they themselves must do i.e. they can’t sub-contract it to another to do. Workers are entitled to some but not all employment rights, notably holiday pay.
- Non-Workers – people who have no employment rights other than those set our in their contracts with their ‘employer’. Most associates fit this category of self-employment and crucially, they can appoint a locum to do their work if they wish to.
BDA agreements are the most widely used across the profession and have been relatively unchanged for decades. But now the Association is urging practice owners and associates to do some navel gazing and ensure that the contracts they have in place are still fit for purpose in light of the ‘direction of travel’.
The majority of associate dentists are self-employed in an arrangement that they and practice owners consistently claim, when asked, that they favour. They do not receive the many benefits associated with employment, but nor are they beholden to the practice they work at and are free to appoint a locum, if they wish, to deliver the activity.
But it’s the third category of employment status, ‘workers’ that the BDA wants associates and practice owners to review and ensure that going forward, any written agreements accurately reflect the nature of the relationship.
A truly self-employed associate – that’s a ‘non-worker’ - may appoint a locum to undertake the work they have contracted to deliver. However, if the associate is expected to undertake the work personally, whilst still ’self-employed’, the relationship becomes one of ‘worker’
According to an update issued by the BDA on 8th December the future employment status of associates stands to be affected by various factors.
Decisions taken by Employment Tribunals and Employment Appeal Tribunals ‘have indicated that some associates may now be considered workers and therefore have some employment rights’ the BDA guidance states. ‘The most relevant of those rights being protection from unlawful discrimination and paid holiday’.
The BDA also cites ‘changing times and preferences’. As the profession emerged from Covid the BDA consulted widely and found that whilst self-employment was still the preferred arrangement, a growing number of associates were being attracted to the benefits of employment rights, not least those who failed to receive NHS income during the pandemic despite the NHS expressly instructing practice owners to pay their associates at pre-pandemic levels.
How dentists are remunerated is fundamental to their employment status. To claim self-employment they need to be able to control the amount of work they do and the income they earn and the BDA acknowledges that the UDA system does, at least, provide a good framework for recording activity.
The Association has pledged to ensure that as the NHS contract is reformed it will lobby for mechanisms that enable performance measurement as this is a key qualifier for self-employment.
What’s Best For Me And / Or My Practice?
The BDA has updated its associate agreement template. Two versions now reflect the choice of ‘self-employment’ recommended for parties that wish ‘to retain full independence’ and a second version where the associate is engaged as a ‘worker’.
The ‘worker’ version, says the BDA, is ideal for associates who want a little more protection as well as practice owners who ‘want to minimise their legal exposure’. It suspects many associates, especially those doings lots of NHS work for a practice and currently on non-worker agreements, would be advised to look at ‘worker’ status.
‘The contract should reflect the true legal relationship’ says the BDA’s video embedded in the link below. ‘If an associate is engaged on a non-worker contract when they should be engaged as a worker, the practice could face claims that would retrospectively change the balance of the agreement.
Some NHS dental associates practising in England and Wales could be considered workers because the predominant purpose of the associateship is for the associate to provide NHS services for the practice under their own performer number.
NHS dental associates in Scotland and Norther Ireland are likely to be considered non-workers as they are providing their services to the health service rather than the practice’.
One immediate question will inevitably revolve around the cost of holiday pay where associates are deemed to be workers and whilst negotiation is key, it’s likely that there will be trade-offs between percentages / UDA rates to fund the holiday pay so that neither side loses out.
With regard to private practices, the issue of associate status is even more nuanced. The BDA’s guidance states ‘We believe that, to a large extent, whether an associate dentist is a worker will depend on whether the associate is working for the patients, or whether the associate is working for the practice.
If patients understand that any agreements they have for treatment are with the associate and not the practice, then a tribunal is likely to consider that the associate is working for the patient, and they are not a worker. The traditional form of self-employment would therefore be appropriate.
However, if the patient believes they are being treated by the practice and that they are paying the practice, rather than the associate, for the work, then it is likely that the associate will be considered to be doing work for the practice on a patient of the practice and is therefore a worker’.
For further information and a useful video see https://bda.org/advice/Pages/Associates-employment-status.aspx
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