Solicitor, Sarah Buxton, looks at how to clearly define whether your associates are employed, or self-employed.
The issue of employment status has, aside from the pandemic, been arguably one of the biggest topics in dentistry in the last year or so – since a judgement was released showing how a practice owner was found vicariously liable for the clinical treatment of one of their associates.
That has led to other claims and prompted many in the profession to look harder at the status of their employees and whether their associates and other members of the team, are in fact, directly employed by the practice, or self-employed.
Employee status can throw up a number of issues, so here is a little guide on how to define whether your employees are employed, or self-employed…
Things to think about
It is probably helpful to give you an example of where self-employed and employed wasn’t clearly defined. The Associate in the case mentioned above was self-employed and had a self-employed agreement in place. The Practice Owner decided to bring the associateship to an end and serve the associate three months’ notice as per their associate agreement.
Following the news, the associate took the practice owner to an employment tribunal and eventually won. During the tribunal hearing, the associate argued that although they had been described as self-employed – their relationship was actually one of employee status.
They had been given a specific number of holidays and told when to take them, what hours to work and what equipment they should access while in the practice. Another key element was whether the associate was allowed and given, the opportunity to substitute for example, by putting a locum in place. The associate affirmed that although there was a clause in his contract allowing him to do so, he had never exercised this right. Based on all this information, the judge in the case ruled in favour of the associate – stating the level of control the practice had over them was the same as that of an employee.
So, looking at this case, there is a really important word practices need to consider, and that word is ‘control’.
Associates usually work on a self-employed basis, so what you need to do to cover yourself from being taken to a tribunal is to make sure you keep your relationship with your associates, or other self-employed individuals, as uncontrolled as possible. They may have a set amount of holidays which is fine, but what you need to avoid doing is telling them when to take those holidays.
For practices with NHS contracts, it can be difficult not to exert control over an associate as the Practice has to provide UDA targets. To have a target is controlling, however, without a target the practice owner may have to pay the associate for overperformance.
So, when it comes to this topic, which can be quite stressful for practices, if you keep in mind the word ‘control’ then you will be able to clearly define who is employed and who isn’t. By doing that you will be able to protect yourself from cases such as the one above – where the practice faced a hefty compensation pay out.
Sarah Buxton specialises in acting exclusively for dentists, dental managers and dental practice owners in all aspects of HR and employment law and is a director at FTA Law. Sarah advises dental practices on managing and motivating their staff, dealing with sickness absence, assisting with making changes to employment contracts and, if needed, how to bring the employment relationship to an end.