Dental Associates are Self-Employed Contractors and Not Employees

The role of corporates and whether Associate Dentists should now be classified as employed or self-employed has caused controversy recently.  Following the introduction of GDS Contracts and PDS Agreements some commentators believe that the new NHS dental contract arrangements had led to corporates exercising more control over Associates.  This has led to Associates pursuing claims alleging the agreement has created a contract of employment for the purpose of section 230 of the Employment Rights Act 1996.  Most corporates and sole traders tend to use the British Dental Association Model Agreement.  Specific Terms and conditions are then added by the parties.

The question of whether an Associate is employed or self-employed is complex and the intention of the parties is one of many issues which needs to be considered when it comes to determining the dispute.

In Mark Ter-Berg v Simply Smile Manor House Limited and others (2020), Case No. 3334608/2018, Simply Smile Manor House Limited had entered into Associate Agreements with dentists for the provision of primary dental services.  Mr Mark Ter-Berg, Associate Dentist,  issued a claim seeking an order that the Associate Agreement had created a contract of employment. 

Employment Judge Ord held that the Associate Agreement did not create a relationship of employer/employee.  The intention of Mr Mark Ter-Berg was to enter into an agreement as a self-employed contractor.  Simply Smile did not exercise any control over his work, to make Simply Smile his employer.

In respect of the power of delegation/provision of a substitute, the Judge held that it was genuine and was only limited to the extent that was necessary to give business ethnicity to the right of substitution in circumstances where health treatment is being provided to a member of the public.

The fact that Mr Ter-Berg chose not at any stage to implement or use the locum clause did not render it any less genuine; Autocleanz Limited Belcher [2011] UK SC 41 applied.

Nothing changed in the way the agreement was carried out on a day by day basis to suggest that the agreement did not reflect the true intentions of the parties. 

Accordingly, the Judge concluded that Mr Ter-Berg was not an employee of Simply Smile but a self-employed contractor.

Simon Butler was instructed to act for Simply Smile Manor House Limited.

A link to the full judgement can be found here