Dentist loses dispute over employment status

A dentist has lost the right to call himself a worker at an Employment Appeal Tribunal (EAT).

In the recent case, the EAT held that an unfettered right of substitution in a contract can be detrimental to worker status.

The case involved dentist, Dr Sultan-Darmon, who provided dental services to Community Dental Centres Limited (CDC) for the provision of dental services under a contract.

When the agreement ended, Dr Sultan-Darmon brought an Employment Tribunal claim against CDC for unlawful deductions from wages.

 As a preliminary issue, Dr Sultan-Darmon had to establish that he was either an ’employee’ or a ‘worker’ of CDC – without such a finding, his claim would fail.

The tribunal heard how the dentist entered into a contract with CDC that was described as a ‘licence agreement and contract for service’ and specifically stated that his status was a self-employed independent contractor.

It established a number of key terms of the contract, including those which stated that he was a ‘self-employed independent contractor dentist’; that he paid his own tax and NI; and defined his hours.

The contract also provided that, if the dentist failed to provide his services for a period of more than five days for any reason (other than in the case of holiday), he would have to arrange for a locum to use the dental surgery facilities and that, in such a situation, Dr Sultan-Darmon would be responsible for paying the locum.

In fact, the dentist had never relied on that provision to engage a locum, although other dentists on similar terms had done so.

The EAT held that this was an unfettered right given to the dentist to appoint a substitute and as he was not obliged to perform personally any work or services, he could not, therefore, be a worker.
Bridget Wood, a partner and employment law expert at Blake Lapthorn, says: ‘The case reinforces the importance of having carefully drafted contracts in place. However, it is also important to remember that all the circumstances of the case will be considered by a tribunal when looking at worker status, including how the services are in fact provided.’

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