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Are Associate Dentists employees?

Are you a practice owner who employ’s associate dentists or an associate dentist who has ever wondered about your employment status? If so keep reading.

The agreement

A contract of employment or services defines most contractual relationships and that is why most practice owners provide associate dentists with a contract for services and mistakenly deem that to define the relationship as one of self-employment; however in reality this may not be the case.

The following clauses (though please note that this list is not exhaustive) will assist an employer to distinguish an employed dentist from an associate:

– the associate dentist’s ability to ‘substitute’ their services with another professional;

– allowing the associate dentist to treat their own private clients;

– charging for the hire of equipment if the associate treat their own private patients.

The operational relationship

It is established law, confirmed recently by the Supreme Court in Autoclenz –v- Belcher [2011], that when looking at the status of whether someone is an employee under law, the operational relationship of the parties is considered.

A worker will have legal status as an ‘employee’ where there is sufficient control, duty of mutual obligations and integration. This means that where an associate dentist (again this list is not exhaustive):

1. Is personally required to complete the work of a dentist;

2. Does not work for any other practice;

3. Has no control over which patients they treat;

4. Is made to wear the practices corporate wear (if any);

5. Work set hours;

6. Has a set monthly salary;

7. Has limited annual leave and requires the permission of the practice before taking any leave;

They may be deemed as an ‘employee’ by the courts.

Further guidance has been provided by the recent Court of Appeal (COA) in Quashie –v- Springfellows Restaurants Ltd; it seems that courts are likely to grant employment status to those who (a) hold a contract to personally perform services and (b) get paid for the time they attend work; i.e. they do not take the economic risk of potentially being out of pocket for any time they attend work. 

In Quashie the COA concluded that although there was a contract for Ms Quashie to provide services personally, this was not a contract of employment. It was clear from the manner in which she was paid (exclusively by third parties) that Stringfellow were under no obligation to pay her anything on the nights she attended work.  Therefore she took the economic risk of potentially being out of pocket on a particular night. (Updated on 18 February 2013)

Worker

Something that all practice managers and associate dentists forget is even if someone is not deemed to be an employee they will almost certainly fall into the definition of being a ‘Worker’ which is wider and includes anyone who is contracted to ‘personally provide a service’. ‘Workers’ enjoy protection against all discrimination claims including whistleblowing claims.

The Equality Act 2010 defines ‘protected characteristics’ as age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion and belief, sex and sexual orientation.

So although obtaining legal advice when employing/taking up an associate position may seem unnecessary, it may save you expense of litigation in the future.

If you are a practice owner or associate dentist needing any advice in respect to associate agreements then please do not hesitate to contact me on 0113 350 4030 or samira.cakali@scesolicitors.co.uk.


Please note that the information in this blog is to provide information of general interest in a summary manner and should not be construed as individual legal advice. Readers should consult with me or other professional counsel before acting on the information contained here.

Samira Cakali

Samira Cakali is a pragmatic and approachable solicitor advocate with extensive contentious and non-contentious experience in the fields of employment law as well as civil litigation, within a range of commercial businesses from SME’s to multinationals as well as senior executives.

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