The impact of coronavirus on dental employment

Sunil Abeyewickreme discusses the impact of coronavirus on dental employmentNeel Kothari speaks to specialist dental solicitor Sunil Abeyewickreme about the impact of coronavirus on industry employment matters.

Sunil held the position of senior legal adviser to the British Dental Association (BDA) between the years of 2004 to 2008. In 2010, he became a partner in a national law firm and was later responsible for leading the dental healthcare team in an international law firm.

He is currently a partner at Gunnercooke LLP.

Can you give the profession an update on where we stand with furlough and the job retention scheme?

On 20 March 2020, The Rt Hon Rishi Sunak MP announced the Coronavirus Job Retention Scheme and introduced the concept of furlough leave where the government would pay employers 80% of employee wages up to a maximum of £2,500. It appeared from the guidance that was published online that there was no obligation on the employer to pay their furloughed employees 100% of their contracted wages. However they had to be paid 80% of the wages (up to a maximum of £2,500) that employers would claim from HMRC. This will affect NHS, mixed and fully private practices in different ways and I have discussed this further in the questions below.

How has coronavirus affected the practice of dentistry?

The chief dental officer wrote to the dental profession on 20 March 2020 and advised practices to ‘consider the potential risk of asymptomatic cases attending in this delay phase and reduce exposure of staff and patients to infection by avoiding all aerosol generating procedures wherever possible’. This was considered by many as an edict to significantly restrict routine dentistry in general practice and subsequent letters and webinars clarified the restrictions on a face-to-face patient interactions.

On such a basis and given the financial assistance provided by the government, practice owners took the decision to reduce numbers of staff from the practice and to place employees on furlough leave. This was done on the understanding that 80% of the employment costs, plus the associated Employer National Insurance contributions and the minimum automatic enrolment employer pension contributions on that wage would be paid by HMRC to the employer. This applies to employees who were not working but were kept on the payroll i.e on furlough leave.

What concerns have your clients had?

There are several areas that still need to be addressed. Within a matter of days on the 25 March 2020, it became apparent that employers would only be entitled to recover employment costs of staff who were on their payroll on 28 February 2020.  This in itself caused problems for employers who were acting on the basis of the Chancellor’s statement on 20 March 2020. Having also considered the chief dental officer’s letter of that day, they had furloughed staff who had been placed on the employer’s payroll after 28 February 2020.

On 23 March 2020, NHS England published a letter for general dental practices that caused considerable confusion.  It stated that practices benefiting from continued NHS funding would not be eligible to seek any wider government assistance which could be duplicative.  This was concerning when all routine non-urgent dental care including orthodontics had to be stopped.

However, late on Thursday, 2 April 2020, the BDA informed its members that NHS England had confirmed whilst it was in dialogue with the BDA, its principles were that NHS dental contract holders wishing to claim against government support schemes should ensure that this is in relation to private revenue only.  Moreover, the BDA informed its members that NHS England expected that as part of the 2020/21 reconciliation process, practices were expected to declare they had not applied for any duplicative government funding. They were to provide evidence of the portion of NHS/private income used in any applications for additional support.

We are currently taking instructions from dental practice owners that are considering applying to the Administrative Court, at the High Court of Justice for judicial review. This is if NHS England act in the manner set out in their preparedness letter of 25 March 2020 which is in contravention of the terms set out in the contracts that are held with NHS dental providers.

What help is there for the self-employed?

Self-employed members of the dental team including associates, hygienists and therapists are not eligible for the Coronavirus Job Retention Scheme. They would need to claim financial assistance through government grants.  However, no grants are available to the self- employed who had trading profits of £50,000 and over in the tax year of 2018/2019.

NHS England and the government fail to consider that many dental practices offer both private and NHS dentistry, thereby are mixed practices and staffing are often mixed.  Staff are often engaged to undertake work necessary for the practice and it is rare that duties can be separated into distinct NHS functions and private dentistry functions.

Most fully private practices at present have little access to government funds and this is a cause of great distress for many dentists given the uncertainty over how long restrictions could apply for.

What are the implications for mixed NHS/Private practices?

On Saturday, 4 April 2020, the government released its latest guidance on how to claim for employees’ wages through the Coronavirus Job Retention Scheme.  Under the heading of ‘public sector organisations’ it is stated that where employers receive public funding for staff costs, and that funding is continuing, it is expected that employers use that money to continue to pay staff in the usual fashion and do not furlough employees.

Dental practice owners may not consider themselves public sector organisations. However, the guidance expressly states that this applies also to non-public sector employers who receive public funding for staff costs. The government’s guidance now appears consistent with the stance taken by NHS England.  However, the GDS/PDS agreement makes very limited reference to staffing and NHS England have refrained from interfering with a practice owner’s staffing arrangements. Furthermore, dental providers are contracted by NHS England to provide a dental service and paid accordingly for the provision of that service.

This approach taken by NHS England could fundamentally change how NHS dentistry is provided by independent dental practices and may exacerbate the financial hardship experienced by dental practices as a consequence of COVID-19.  It could be more appropriate for a change to be made in the statement of financial entitlements whereby dental performers could be compensated for losses suffered due to COVID-19 and personal payments made by the NHS Dental Services (the NHSBSA). That said, there are likely to be far-reaching changes made to the contracts that NHS dental providers have.

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