What is the correct employment status for associates, hygienists and therapists in a dental practice – employee, worker or self-employed?

This is one of the most asked questions in the dental industry, but there is no easy answer. How you engage your associates, hygienists and therapists depends on how you intend to operate in practice. When a Court or HMRC are determining an individual’s employment status, they will not only look at the written terms but also the reality of the relationship. 

The standard position is that most associates and many hygienists and therapists are self-employed, but what key factors will determine whether this is the reality?

Substitution – arguably the main indicator of self-employed status, an individual should have an unfettered right of substitution and therefore do not actually need to provide the work themselves. If your associate, hygienist or therapist does not have the right to appoint a locum, ideally at any time, there is unlikely an unfettered right of substitution. 

Mutuality of obligation – as a dental practice owner, you should be under no obligation to offer work on a regular or frequent basis, nor should the individual be under an obligation to accept any work that is offered. 

Control – an individual should have the ability to determine when, where and how they work, and the dental practice should not have more control than necessary over the individual. 

These, together with several other facts such as pay and benefits, financial risk and integration will be considered when determining an individual’s employment status, and no one factor alone is sufficient to determine employment status, everything will be considered together. 

In a recent Employment Appeal Tribunal (EAT) judgement, the EAT held that there were errors in how the Tribunal applied the tests of employment status in reaching the decision that the individual dentist was not an employee or worker. Points noted by the EAT were:

• A conditional substitution clause does not automatically preclude being a worker unless exceptional circumstances apply. 

• Worker status must be assessed separately because the threshold is much lower than employee. 

• The fact that the contract labelled itself “not employment” did not automatically mean worker status was excluded. 

Contact our employment team now to discuss how we can support your dental practice in respect of engaging your associates, hygienists and therapists and what changes you can make to protect their employment status.