Employed or self employed?

How plumbers and taxi drivers might affect associate dentists’ self-employment status

Nigel Jones HR and Team Development, Practice Management Leave a Comment

Plumbers and taxi drivers have found themselves with more in common than usual recently, thanks to court rulings about their employment status. These rulings could have ramifications for other professions, in particular associate dentists.

In June 2018 the Supreme Court upheld an earlier decision by lower courts that Gary Smith was a ‘worker’ of Pimlico Plumbers, rather than being self-employed, seven years after he filed a claim for unfair dismissal.

This case followed an Employment Appeal Tribunal hearing in November 2017 which upheld an earlier decision that Uber taxi drivers should be classed as workers, not self-employed. Uber has said it will further appeal the EAT decision, which means this case could also reach the Supreme Court.

These two cases and the media attention they attracted, suggests an ever-brightening spotlight is being shined on the legal definition of what it means to be self-employed. The amount of control a company has over its staff will have an impact on whether they are classed as an employee, worker or self-employed and entitled to the corresponding level of rights. Self-employed people have very few rights whereas workers have the right to a national living wage and holiday pay, and employees have the most rights and lots of protection under legislation.

“One of the key parameters for being self-employed is that, in the event of absence due to sickness, etc., the obligation to provide cover lies with you, rather than the company you are working for.”

One of the key parameters for being self-employed is that, in the event of absence due to sickness, etc., the obligation to provide cover lies with you, rather than the company you are working for. This should be of particular interest to associates, as for the majority that I know, that responsibility is taken on by the dental practice not themselves.

I’ve previously asked Sarah Buxton, a HR solicitor specialising in the dental sector, about the effect of these rulings on associate’s status. She told me that while the ability to locum is an indicator of self-employment, it must be actioned; it is not enough to simply have it included as a clause in your Associate Agreement.

She highlighted a particular case which shows the importance of putting into practice the ability to substitute: ‘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.’

If you add into this mix of recent high-profile court proceedings, the letter that was sent by HMRC to associates in April to say that it is reviewing their employment status, it does not seem impossible, or even that unlikely, that associate dentists could soon be joining the ranks of the Uber taxi drivers in terms of their classification of being self-employed.

*Sarah Buxton, along with Simon Thackeray, a dentist who recently completed a Master of Law, shared their views on the impact of the Uber ruling on associated in an earlier blog.