Originally posted 10 January 2023, updated 14 September 2023 to reflect HMRC changes
This freedom and independence that associates have contrasts with the control that employers typically exercise over their employees: control over how employees should work, the hours of work they must work, remuneration and job responsibilities.
Our model associate agreements reflect both practice owners and associates' desire, expressed strongly in recent focus groups, for associates to remain independent. Core commercial requirements are key to the agreement. In England and Wales contracts include a Unit of Dental Activity (UDA) target. Practices have the option in our model agreement to include a minimum private licence fee and associates have the freedom to work independently.
In April 2023, HMRC guidance on the self-employed status of associate dentists changed. Having a good associate agreement alone is no longer a good indicator of who is truly self-employed. We have taken advice and believe that associates engaged on and working to our model associate agreement are self-employed. HMRC has a Check Employment Status for Tax (CEST) toolwhich includes several stages to explore the status of associate dentists. The headings below reflect the headings in the CEST tool.
Substitutes
A self-employment relationship shouldn't require personal work from contractors. Most recent agreements allow associates to send a substitute when required, but we do not believe that the right to send substitutes is a key element of the relationship between associates and practice owners.
Completing work
Associate dentists are either engaged to carry out specific work, such as completing a particular number of UDAs (in England and Wales) or pay the practice to use facilities. Associates can choose how to treat patients and are able to decide what treatments to provide (subject to NHS rules). Practices do not usually ask associates to carry out day-to-day tasks.
Deciding how work is done
Associates do not have to treat patients introduced by the practice and can turn patients away, subject to compliance with NHS rules. Associates should be able to determine how to treat patients, the length of treatment courses, which laboratories to use and whether personal or practice equipment is used.
Practices cannot tell associates how to do their job but can end associate relationships if unprofitable.
Many associates can choose whether to carry out work personally or ask a hygienist or therapist to do some of the work. Associates have contractual requirements to comply with some practice policies where necessary due to legal reasons, such as the General Dental Council or Care Quality Commission standards. Practices often carry out regular clinical audits to ensure associate compliance.
Practices cannot tell associates how to do their job but can end associate relationships if unprofitable. This could result in discussions between the practice and the associate to develop an improved commercial relationship, however, failing to listen and work together is unlikely to lead to a long-lasting and mutually beneficial commercial relationship.
Working hours
Practices do not control associate working hours or holiday. Our model associate agreement states the availability of the surgery but does not say that the associate must use the facilities. The agreement requires associates to give notice of any time off so that the practice can ensure that the associate's diary is clear. Associates should be able to dictate the timing of appointments, annual leave and numbers of patients seen.
Where the associate works
The associate pays to use the facilities at the practice. The practice does tend to decide which surgery the associate works at. The nature of an associate agreement is that the practice decides which facilities it will allow the associate to use.
Buying equipment and materials
Most equipment is purchased by practices, but often associates also buy equipment, such as loupes, or a camera to take photographs for promotional purposes. Associates should record any personal materials or equipment provided.
Funding other costs
Associates professional development, specialist training, registration and indemnity insurance is self-funded. Under most agreements there is a choice over which labs to use and a responsibility for fees. Associates set charges and are paid for work carried out, with most also generating private work and fees.
Associates also need to fund their own training to work in specialist areas, such as endodontics.
How are associates paid
Associates are paid for the work they perform. Most associates can generate private work and private fees. They can control the fees and control how they work to generate those fees.
In England and Wales, associates have commercial targets for NHS work. In Scotland and Northern Ireland, associates are paid by the government or health service for the NHS work completed.
Associates, like all self-employed people, are able to increase their earnings by working hard. They do not have the guaranteed income employees enjoy. Associates may see their income decimated if private patients choose to desert them or if they have to pay clawback because they fail to meet commercial targets.
Associates are responsible for the work they do and are usually liable for costs of remedial work.
Practice involvement
Associates do not generally receive corporate benefits, most will belong to the NHS pension scheme, but that is not provided by practices. Associates do not have management responsibilities.
Associate contracts
Associates are, and frequently do, provide dental services at more than one practice. Although there may be some restrictions in the associate agreement as to where associate can work. Associates do not generally need to ask permission to work at another practice.
Hygienists and therapists
Independence, self-reliance, and self-employment issues also apply to hygienists and therapists in the same way as associates. Hygienists and therapists who control earnings and ways of working are more likely to be considered self-employed than individuals who are paid an hourly rate and told how to work.
Control and responsibility
Without the protection of employment rights, associates who exercise control in a detrimental manner may not last long. Practice owners can end associateships for any reason and may choose to do so if the relationship is not profitable or practicable.
We have seen many high-earning associates contracts ended early because of poor conduct towards practice staff or due to performance concerns. Regular communication and shared values are vital ingredients for both parties to enjoy the fruits of independent business.