14 Feb 2018  •  Blog, NHS  •  7min read By  • Sarah Buxton & Simon Thackeray

Sarah Buxton and Simon Thackeray look at how this ruling may impact the dental industry

In November, Uber lost its appeal against an earlier ruling stating two of its drivers could be classed as workers, rather than self-employed contractors. This case has once again brought up the question around the employment status of associates – although it’s worth pointing out that Uber are set to appeal this latest decision as well.

To look at what ramifications this latest ruling could have for associates, I turned to two experts in the legal and dental fields. Simon Thackeray is a private dentist who recently completed a Master of Law and Sarah Buxton is an employment solicitor, specialising in working with dental practices. I asked them for their thoughts on the question: What implication does Uber losing its appeal have for associates?

Simon: “For a while now I’ve been of the opinion that the traditional self-employed model for associates in dentistry is not going to be with us forever. In many aspects of the law, associates are seen in the same way as traditional employees, especially by the Health and Safety Executive, and they hold a status under the NHS as a performer working under a provider’s contract. In many other industries this could be seen as employment given the conditions of work that are attached to it. It has only been the traditional working arrangement agreed by HMRC and the fact that associates are liable for their own errors (and thus carry their own indemnity) that has retained the status quo, in my opinion.

However, I think this could now be closer to a fundamental change given the appeal court ruling in the Uber case. These ‘gig culture’ workers are now judged to have similar rights to traditional employees, such as a minimum wage entitlement and holiday pay. Many will agree, the relationship that most associates have to the practice they work in is even closer than that of those in this gig culture, especially if we accept that work done by an associate is usually in the same place, more regular in consistency, and under the auspices of a practice policy (such as specific hours, specific uniforms etc.).

For that reason, I wonder if this verdict could start to set a precedent in other fields of the traditionally self-employed. The most obvious challenge one would imagine would come from HMRC. Dentistry might not be the first sector in their sights though, and it may not be a challenge from that direction we need to be aware of. It could actually be a disgruntled associate. We won’t see the BDA financially support an action of this nature as the potential for its own self-destruction if it did would be great; but a challenge nonetheless may well be in the offing now a precedent has been set.

“I wonder if this verdict could start to set a precedent in other fields of the traditionally self-employed.”

The immediate (albeit slightly complex) example I thought of was the following. What if an associate who was involved in a negligence case had their discretionary indemnity removed for some reason, resulting in the vicarious liability of the principal being invoked? This could well create a challenge between those two parties as to who was actually liable, resulting in a court deciding. This could bring in the use of case law such as the Uber appeal, thus legally determining the employment status of the associate.

There are many people more eminently qualified in the law who will no doubt put me right and this example may be rare; but with an inexorable rise in unaffordable premiums for associates, discretionary indemnifiers who can withdraw cover (for both the associate and the vicariously liable principal), and now a court precedent that conveys employment rights on those seen as the traditionally self-employed, it is not beyond the realms of possibility that the day of the self-employed associate could be nearing its twilight if it were to be challenged in court.”

Sarah: “Firstly, it’s important to point out that there are three types of employment status in UK law – self-employed, worker and employee. Employees have lots of protection under the employment legislation, self-employed staff have very few rights and workers have some rights but not as many as employees. The main rights for workers are the right to be paid the national living wage and holiday pay.

Uber claims its drivers are self-employed and hence they shouldn’t be paid holiday pay. However, the Employment Tribunal ruled they are workers. The company tried to appeal this decision, but in November the appeal judges upheld it.

The judge would have looked at various factors to make such a decision, with the main key indicator being the amount of control that Uber had over its drivers. The more control, the more likely it is that they will be a worker, opposed to self-employed. Another factor taken into account appears to be whether the drivers personally undertook the work. In my experience, the factor of undertaking the work personally really does have a huge impact on employment status. To put it simply, an employee/worker cannot send someone else in to do their job, but a self-employed person should be able to substitute.

Turning to the dental industry, the fact that dentists can locum is often the key to ensuring they are self-employed. However, it is not enough to have this clause in an Associate Agreement, it must be actioned. The Uber appeal case reinforces how important the right to substitute is. That being the case, the dental industry really needs to turn its attention to its hygienists/therapists and question whether they are genuinely self-employed and whether they have the right to substitute/locum? And, if so, has this ever been put into practice? I suspect not.

“The fact that dentists can locum is often the key to ensuring they are self-employed. However, it is not enough to have this clause in an Associate Agreement, it must be actioned.”

The status of associates is constantly being challenged through our legal systems. One particular case which springs to mind is that of Mr Antonio Rodrigues v Whitecross (IDH) where Mr Rodrigues (associate dentist) claimed he was an employee and hence claimed he had been unfairly dismissed. The Employment Tribunal held that the locum clause in his associate agreement was not genuine and Mr Rodrigues had to perform the services of a dental associate personally, hence making him an employee.

The Uber case has brought the question of employment status into the news again and goes to show how the tide is turning. Taxi drivers have had self-employed status for decades and yet two taxi drivers have managed to make such a significant change for their colleagues. This will have a knock-on effect on the dental industry.

Although the Government is currently distracted with Brexit, a report was commissioned to assess the three types of employment status and whether these could be clarified. As far as I’m aware there has been no further action as a result of the report, but given this recent Employment Appeal Tribunal decision, I believe there will be focus on it again.

I understand Uber is to appeal the decision…so watch this space.”

Thanks to Sarah and Simon for sharing their knowledge on this matter. The Uber case has once again cast doubt on associates’ self-employed status and it seems ever more feasible that they could become classified differently. This would, of course, be a huge shift for practices. However, as Sarah pointed out this latest ruling is being appealed by Uber as well, so it’s unlikely that anything will happen in the very near future and for now the profession will continue as it has, but perhaps with growing awareness, and perhaps confidence, that this change could be looming on the horizon.

*Information is correct at the time of going to print.

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