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HR and employment law in a dental practice

The inherent difficulties of operating a practice day to day are, of course, substantial. One area that can often be neglected in the pursuit of superior quality standards and patient care is HR and employment law issues.

While this question may present no problems when all is running smoothly on the ‘Good Ship Dental Practice’, there is however a wealth of legal issues potentially lurking beneath the surface for the unprepared practice owner and associate alike. So what can go wrong? 

Well…

The Contract

The starting point for avoiding problems is naturally when a new starter is issued with their contract of employment or services. This defines most contractual relationships however at present many practice owners provide associate dentists with a contract for services and then mistakenly believe this to mean the associate is self-employed. Quite to the contrary, this is not always the case and much to the detriment of those business owners.

The key for a practice owner is to always look at the day-to-day operational relationship of the parties. In many disputes an employment tribunal will look to this in assessing whether an associate is an `employee’. A worker will be considered an employee where there is sufficient control from the employer, a duty of mutual obligations and integration. This consequently means that the aggrieved associate may then qualify to make wider and more costly claims against the practice, most crucially unfair dismissal.

Discrimination

A factor that most practice managers and associate dentists forget is even if someone is not deemed to be an employee they will almost certainly be deemed to be a ‘Worker’, the definition of which is wider and includes anyone who is contracted to `personally provide a service’.

‘Workers’ enjoy protection against all discrimination claims including suffering a detriment as a result of whistleblowing, a detriment can include being subject to disciplinary proceedings as well as being unfairly dismissed.

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

Restrictions

To protect ‘trade secrets’ and ‘highly confidential data’, service and employment contracts should contain appropriately worded restrictive covenants. This will deter former key staff (including consultants) from using your client data to start up their own venture!

TUPE

When purchasing an existing practice it is important to realise that one is not likely to just be acquiring the bricks and mortar.  Under the Transfer of Provisions (Protection of Employment) Regulations 2006 (`TUPE’) employees will automatically transfer with the business being acquired. This also extends to `service provision changes’ which covers the outsourcing or insourcing of services between businesses.

TUPE preserves the terms and conditions of employment of all transferring employees. Within a practice TUPE would apply to dental nurses, receptionists, cleaners and employed dentists (see above). However, it is unlikely to apply to those working under a genuine contract for services such as self-employed hygienists and associates.

Therefore upon completion a new owner cannot think about changing any terms or conditions of employment unless they have an Economic, Technical or Organisational (ETO) reason for doing so. Ignoring TUPE may mean paying a hefty fine for unfair dismissal in an employment tribunal.

Restructures

Whether a practice restructures as a result of TUPE (see above) or redundancy, there are strict procedures which must be followed to ensure the fairness of any dismissal.

A practice owner must consult and inform staff; ensure the selection of roles and people at risk of redundancy is undertaken fairly and allow staff the opportunity to comment on the situation, including serious consideration into any viable suggestions raised to avoid redundancy altogether (such as reduction in hours and/or wages).

Failure to follow procedures could result (and you know what’s coming next) in an employment tribunal litigation.

How we can help

So as you can see whether you are in the midst of purchasing a practice, restructuring or whether you are taking on a new employee, obtaining specialist advice is essential.

Employment law is an area of rapid and constant change, particularly as the government have pledged to make it easier for businesses to hire. That is why we have developed myHR where our lawyers and consultants become your outsourced HR team.

A subscription to myHR means you are provided with day-to-day support and advice on managing your staff on matters such as redundancy, disciplinary and grievance procedures and maternity leave. We are regulated therefore you have peace of mind when following our advice and can get on with what you are good at doing – being a dentist and running your practice.

If you are a practice owner or manager and want to know more about myHR or want a free business MOT please contact us now by either completing the form online or contacting us on 0113 350 4030 or at hello@scesolicitors.co.uk.


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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