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Associates' self-employment status

Self-employment has long been the default status for associates in general dental practice which the BDA has sought to protect.

​Self-employment, employment or an in-between of ‘worker status’ each has its own pros and cons. Learn about the differences and what it might mean to change. Find out what we’re doing on associates’.

 

Why are associates typically self-employed?

There are a small number of employed associates in the general dental services. The vast majority are self-employed.

 

In England and Wales, practice owners tend to be the NHS contract holder, or the Provider, having tendered for the business. That contract enables them to engage other practitioners to deliver the care to target. In Scotland and Northern Ireland, individual NHS dentists have their own NHS contract.

 

Is this likely to change?

Not immediately. However, there are a number of factors which could influence the future employment status of associates:

 

​Future 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.

 

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.

 

System reform

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’s approach

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.

 

The pros and cons

The following videos outline the facts about self-employed and employed statuses and present the advantages and disadvantages of each.

 

Control is a key factor. The more control a practice owner has over the associate and their work, the less self-employment can be argued. Take-home earnings are also a big differential for the associate, while national insurance and tax is a big consideration for the employer.

 

Self-employment and limited companies (19:44)

 

Employment (06:24)

 

Worker status (08:10)

 

Associates and vicarious liability

There have recently been some cases where practice owners have been found to be liable for the work of associate dentists. There has been talk that this may affect self-employed status of associates dentists. We do not believe it will.

 

The legal tests relating to vicarious liability are different to the tests for self-employed status, even if there are some common areas.

 

Practice owners may conduct more checks on associates to ensure that the work done by associates is good, and practice owners may want to work with associates to ensure that patient complaints are dealt with well. These checks and complaint handling should be done with practice owners and associates working together. Clinical audits should be no different to any other check on the performance by one commercial party of another commercial party.

 

Practice owners should not be too prescriptive. Treating associates like employees could make them employees in the eyes of the law. Likewise, associates should cooperate sensibly and professionally with practice owners. Practice owners faced with non-cooperate associates may decide that the safest course of action is to give the associate notice of termination.

 

What do you think?

Members can register to attend our upcoming webinar, Associate agreements – what you need to know, which will help you understand the commercial aspects of your associateship agreement and offer practical suggestions for how to operate a BDA model associateship agreement in a compliant way, consistent with key clauses.

 

Our focus groups were pretty conclusive; that in England at least, associates and owners alike would prefer to remain self-employed. However, there was a noticeable level of interest in the benefits of employment among younger dentists. We strive to represent all dentists and so will continue to provide members with advice on these important.