Look again at your contract with your practice owner, the BDA has updated its template associate agreements to reflect developments in employment law and it may be that you want to adopt the new model so that your arrangement incorporates all the new features.
The new templates define the self-employed nature of associateships (technically you are hiring the facilities from the practice owner, with most associates paying for them through an apportionment of fees earned). There are a number of templates reflecting whether you are in NHS, private or mixed practice and the part of the UK you are based in. They have been updated to reflect the changing focus of employment law which is developing in response to the growth of the so-called gig economy. The changes have been made in order to strengthen and emphasise the self-employed status of associates. The changes are also designed to give associates more control over how they work, and more risk (a crucial element of being able to show that you are self-employed and hence in business on your own account).
The main changes are:
Practice hours – this should state when the practice is available for the associate to use, but to protect the associate’s autonomy there is no explicit obligation on the associate to use the facilities at those times. Of course not turning up would be unreliable so this right is tempered by indirect obligations on furthering the interests of the practice, providing care to patients and complying with any obligations under NHS regulations or private capitation schemes. Leaving the practice without NHS cover and in breach of the practice’s NHS contract could lead to immediate termination. There is also a provision for a minimum private licence fee.
Time away from practice – this is a new term in the contract, which puts the associate, as a self-employed contractor, in control of when they take time off. Time away from the practice could be for a number reasons, including sickness, maternity or paternity leave, CPD and of course holiday (this part totally replaces the previous provisions on holidays or parental leave). The reasons for time away from the practice are up to the associate and don’t need to be justified. Associates only obligation to the practice owner is to keep them informed about their presence or absence and to give adequate notice of any planned absences. Additionally, for absences over a certain length of time (different practices may set this at a couple of days or a week) the associate needs to provide locum cover in their place.
Locum cover – self-employed contractors do not have to provide a service personally, therefore in addition to providing a locum for absences over a certain length the associate can provide a locum at any time, wholly at their discretion. This right to send a substitute has been ruled by the courts to be fundamental to self-employed status. Of course dentistry is a very personal service so it is not envisaged that associates would exercise this right casually but it is vital for their self-employed status that they have it.
Provision of equipment – there is an option for the associate to provide some of their own equipment or materials, again being able to do this is an important indicator of self-employed status.
Hygienist services – the associate is required to make an additional payment to the practice owner if they use the practice’s hygienist or therapist for any of their patients. It is important that practice owners are not seen to provide a financial incentive to associates to make hygienist referrals, so the associate paying for this as an additional service is the best way to avoid it (however, the patient fee should be included in the associate’s gross earnings before any charge is made).
NHS contract requirements (England & Wales) – in return for the freedom to choose their own hours, associates are obliged to provide a specific number of UDAs or compensate the practice. The practice owner should not lose out because the associate has taken too much time off and has not met their UDA target.
Private fees – the associate should be able to charge their customers any fee that they want. However, if these differ from the practice owner’s scale of private fees the fee apportionment must be based on at least the practice owner’s fee.
Confidentiality and data processing – the clauses required so that the patient records are used in accordance with the GDPR have been incorporated.