Developments in employment law
In 2017, the government published a review of modern working practices written by Lord Taylor. It has said it would implement recommendations from that report, but has not been specific. It is possible that implementation of some of the recommendations could impact on self-employed status of associate dentists. We will not know more until the government publishes details of any plans.
More recently, Employment Tribunal and Employment Appeal Tribunal decisions have indicated that some associates may now be considered workers and therefore have some employment rights. The most relevant of those rights being protection from unlawful discrimination and paid holiday.
As ever, much will depend on the individual circumstances of the relationship between the practice owner and associate. At present, we believe the recent tribunal decisions are only relevant to practices providing care in England and Wales in view of the differing contracting arrangements with the NHS in Scotland and Northern Ireland.
Changing times and preferences
In recent years and especially coming out of the COVID-19 pandemic, we’ve seen reasons to review this default position. Not all practice owners in England passed on the payments to associates
despite NHS England’s expectations so a worrying number of associates were treated unfairly, prompting some to see benefits in employed status where they did not before.
In 2021, we held a series of focus groups discussing the preferences of associates and practice owners in England and Wales. We asked if they were content with the current position or, whether in light of recent legal and tax developments and a changing commercial environment more widely, there is an appetite for something different - the employment of associate dentists or engaging with them as workers.
The majority of associates and practice owners stated a preference for continuing self-employment. However, the focus groups also revealed:
- Having greater control and paying less tax/NI were seen as the main benefits of self-employment but employment rights were seen as appealing, particularly coming out of the pandemic.
- Associates working in England felt that NHS dentistry was no longer an attractive route for dentists. Many feel dissatisfied and expressed a desire to move into private practice. They did not believe NHS working conditions and constraints would change if associates were employed.
- Practice owners expressed concern over the grey areas of employment status, and the risk of HMRC pursuing them as a consequence. The
locum clause within associateship agreements (which requires the associate themselves to engage a locum) and the degree of control given to associates were deemed contentious.
- Practice owners felt that productivity would suffer if associates moved to an employed status. Since UDA targets had been suspended in Wales some practice owners claim to have seen evidence of this. It was felt a basic salary with bonuses for meeting targets would incentivise associates to deliver parity in their performance as self-employed practitioners.
- Dentists in Wales felt that the current system being implemented for NHS dentistry was more suited to associates being employed. Some newly qualified associates favoured this model.
- If there was to be a shift in the profession, then the BDA should be involved in shaping any future models and should continue to offer guidance to the profession.
If associates are to remain self-employed, they will need to retain control over the work they do and the amount of money they can earn. For associates to be control the work they do and their income, there needs to be a clear measurement of how much work associates are doing. UDAs for example, despite their other faults, do provide that clear measurement.
We are working with NHS England to arrive at a different contract model for the remuneration of NHS dentistry. We will fight to ensure that any measurements will allow associate performance to be measured so that associates can be paid on their performance. This will help ensure there are no consequential alterations on the employment status of any of the dentist workforce.
Wales is further ahead on system reform. On 1 July 2021, the Wales Minister for Health and Social Services indicated that there will be no return to target-based contract for high street dentistry left behind during the pandemic. To ensure remuneration is fair and proportionate, some metrics will be required to enable owners to pay associates. We are working with the Chief Dental Officer to achieve a system that both patients and providers are happy with and that respects the needs of dentists engaged to deliver the care.
HMRC has for many years accepted that associate dentists are almost always self-employed. Its guidance included mention of our associate agreement in its employment status manual but as of April 2023, this paragraph will be withdrawn.
Jolyon Maugham QC reviewed our model associate agreement and in
this video considered the impact of the withdrawal of HMRC’s guidance on the self-employment status of associates.
Thankfully, we believe that the withdrawal of this old guidance has no impact on the self-employed status of the majority of associate dentists. Indeed, HMRC has told us that they see this as a change to their guidance, not as a change to the self-employment status of associate dentists.
We can also continue to rely on ESM4030 until April 2023, and HMRC will not be using the withdrawal of the guidance as a reason to open retrospective enquiries into periods prior to 6 April 2023.
To maintain self-employment status in the eyes of the Revenue, you should ensure adherence to the
principles outlined in our advice . Make sure you look at your agreement and take advice. Members can get their agreement checked as part of your membership entitlements.