Are dental associates employed or self-employed?

shutterstock_193448069Amongst the established professions, dentistry is unique. It is the only one into which its members qualify as self-employed from day one. Or so it seemed…

After completing a period as a vocational trainee, a dentist’s first unsupervised position within a practice will be as an associate and to all intents and purposes, they will have their own patient list and will share the costs of running that list with the principal, for an agreed percentage of their fee income, whatever that may be.

The agreement that they have with the principal will either follow the BDA (British Dental Association) Model Agreement, or perhaps more preferably will be a bespoke agreement drafted by the principal’s own solicitor or recommended by a solicitor approached by the associate.

The ‘nuts and bolts’ of running the practice on an everyday basis will either be the responsibility of the principal or the practice manager.

Being self-employed, the dental associate is paid a gross sum each month and is responsible for dealing with their own tax and national insurance obligations. Equally, they will be expected to carry professional indemnity insurance with one of the recognised providers and also pay their annual retention fee.

Factors for self-employment

As to whether an associate is truly self-employed is determined by a number of factors:

  • You should be deemed to be running your own business and take responsibility for its success or failure
  • You should have several customers at the same time (ie that you work at more than one surgery)
  • You should be able to decide how, when and where you do your work and should be free to hire other people to do the work for you or help you at your own expense and possibly provide the main items of equipment to do your work.

The question then begs itself as to whether a dentist ought to be considered as employed if they work for one person at a time, who is in charge of what you do and takes on the risks of the business, can be told how, when and where you do their work, have to work a set amount of hours and are paid a regular amount according to the hours worked.

Examined in the courts

This point has recently been examined in the courts in the case of Whetstone-v-Medical Protection Society.

The question of whether partners or principals are vicariously liable for negligent treatment provided by associates should be academic since associates are required to have their own indemnity cover and are also responsible for their own GDC (General Dental Council) subscriptions.

However, there have been cases, where associates have failed to comply with these requirements or have left the practice and cannot be traced.

In the case of Whetstone, the claimant was a sole principal. Between 1998 and 2009 a Mr Sudworth was an associate at the practice. In 2009 there were allegations made against Mr Sudworth of sub-standard dental treatment and his agreement with Mr Whetstone’s practice was subsequently terminated.

A number of claims against Mr Whetstone followed and Mr Whetstone sought indemnity from the Medical Protection Society. The judge as part of his decision had to consider whether in fact Mr Whetstone was liable for the actions of Mr Sudworth.

He concluded that Sudworth’s contract had been carefully constructed so as to ensure as between Whetstone and Sudworth were not in an employment relationship. However, it was clear that Sudworth was expected to follow practice policies eg greeting the patients and communicating with them in accordance with practice language. Sudworth was required to wear a practice uniform, make himself available for work during agreed hours; only had limited holiday entitlement; Mr Whetstone rather than Mr Sudworth collected the fees that Sudworth generated and the fees charged to the patients were those of Mr Whetstone and not Mr Sudworth.

It was clear that Mr Whetstone had a high degree of control over Mr Sudworth’s activities and that Sudworth was an integrated part of Whetstone’s practice. Sudworth had no goodwill in his own patients and could not take them with him when he left Whetstone’s practice.

Therefore, in this instance, the judge decided that despite being an associate at the practice of Mr Whetstone, Mr Sudworth was an employee and consequently, Whetstone became responsible for the negligence of Mr Sudworth and the Medical Protection Society were required to pay out on the claims.

Your contract

The above case may be the first of many such cases but it contains very important lessons for associates and principals alike. For an associate it is vital that you check your contract before agreeing to sign. Most agreements will refer to there being a ‘licence’ for the associate to practice at the surgery.

An associate agreement is not a licence. It does not confer any rights of occupation on the associate and the associate has no right to refuse to leave the practice if the principal requests it in accordance with contractual arrangements.

An associateship is akin to a consultancy, for which period, the associate is self-employed and provides services to the patients of the practice in respect of which he will receive a percentage of the treatment fees recouped by the practice.

For advice on such agreements, specialist legal advice is vital.

Comments (2)

Dear Jonathan,

Most interesting.

I am in need a crown(s) fitted privately and have asked of the practise (my dentist) what guarantee(s) are offered for the work done. They are being very evasive.

I look forward to hearing from you,

Yours faithfully,

James

An interesting article, what are your thoughts on my partners situation.

My partner is dental associate. She graduated in 2014 and completed her VT year and has been working in her current practice (a corporate group) for coming up on 18 months. She took the job based on one UDA amount, albeit they refused to put UDA target in her contract claiming that was standard practice and this being her first proper job and it all being very new she accepted this. She is currently working on average 42 clinical hours per week, she regularly has leave requests denied, claiming she is behind her UDA target even when she is on track. She has been trying to reduce her working hours down to more a reasonable 37.5 clinical hours epr week which is what she was initially ’employed’ (not sure if that right phrase as technically she is self-employed) to do but the practice managers is being very evasive on this and refusing to discuss or change anything.

The plot thickens. One of the other dentist is going on maternity leave and the practice is struggling to find cover for that period and the period going forward when the other associate returns on part time basis. Given how deaf they have been to any requests for a change to my partners working hours , they are currently attempting to force my partner to accept a 21% in UDA’s to her target with no increase in remuneration, no reduction in working hours.

It was our understanding the point of dental associates being self-employed was to give them flexibility over when and how they work and with the benefit being to the practices that they have reduced financial responsibility to the associates i.e. no pension liability and reduced tax and national insurance contributions. However, the reality appears in my partners experience is practice gets all the financial benefit of her so called ‘self-employed status’, but she gets none of the benefits and is being treated like a monkey chained to the UDA treadmill, the practice appears to have no concerns for her mental or physical well being.

My question is, does the practice given this ‘self-employed’ status have any responsibly towards my partner under current legalisation or regulations? I am employed and with the sector I work in I’m very aware of the various acts so that regulate the way my employer behaves towards me, the conditions of working environment and their responsibilities towards me in terms of occupational health. Is there a loop hole dental practices are using to get round these responsibilities? Because as I say they are running my partner into the ground with what appears to be a short term view and not a longer term view on how this treatment is affecting her psychological well being and her productivity long term.

She is feeling very isolated as doesn’t have many ‘dental friends’ her age in this area to ask for advise or if this a normal situation. She does not have expert membership with the BDA so they won’t speak to her. So she doesn’t know what to do or who to speak too. I know this post is from 2014 but thought someone may have some thoughts or comments on this situation?

I hope to hear back from someone.

Kind Regards

Dave

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