The Supreme court’s decision changes everything for Uber drivers but is unlikely to have any impact on dentistry’s self-employed associates.
The Supreme Court's landmark decision against Uber has raised questions for all self-employed people including associate dentists. Traditionally self-employed, associates pay a licence fee - a proportion of their gross earnings - to a dental practice in return for dental facilities. While comparisons may be drawn from this structure, that is where the similarities end. There is a world of difference between Uber drivers and self-employed associates and as a result, the Supreme Court's decision is unlikely to have any impact on dentistry.
What defines a 'worker'?
In the Uber case the employment tribunal decided that Uber drivers were classed as workers. The Supreme court ratified that definition.
Broadly speaking, there are three categories of people in the workplace:
- Employees with full employment rights.
- Workers with some employment rights. These rights include rights to discrimination and paid holiday.
- Self-employed people in business on their own account with no rights.
"In this landmark ruling against Uber, the Supreme Court's decision was based on how the tribunals consider questions of worker status."
If someone is an employee then they will also be a worker. However, the definition of a worker is much broader than the definition of employee, and many people may be 'workers' but not 'employees'.
Associates have rarely been successful at tribunal when claiming to employees, however some have successfully claimed to be workers (usually in relation to unlawful discrimination). The important information to take away here is that it really comes down to individual circumstances of each case and the findings of the tribunal.
In this landmark ruling against Uber, the Supreme Court's decision was based on how the tribunals consider questions of worker status. Using their same criteria, we do not believe that associates would be defined as workers and thus the outcome of this case will have little impact on their situation.
Why this case has little relevance to associate dentists
The Supreme Court highlighted some aspects of the Employment Tribunal's decision it found was particularly important in defining Uber drivers as workers. Looking at those points, we can see why Associates cannot be compared to Uber drivers:
- Once an Uber ride is booked through the Uber app, the driver has no control over what is charged. Dental practices usually allow associates discretion on what to charge. The BDA encourages practices to allow associates flexibility on what is charged, even if the associates bare the full cost of discounts from normal practice prices.
- The contract terms on which drivers perform their services are imposed by Uber and drivers have no say in them. The BDA encourages associates and practices to discuss terms carefully; most do.
- Once a driver has logged onto the Uber app, the driver's choice about whether to accept requests for rides is constrained by Uber. Associates can reject patients.
- Uber also exercises significant control over the way in which drivers deliver their services, such as by use of a ratings system. Dental practices give associates clinical freedom.
- Uber restricts communications between passenger and driver to the minimum necessary to perform the particular trip and takes active steps to prevent drivers from establishing any relationship with a passenger capable of extending beyond an individual ride. Dental practices generally encourage a good relationship between associate and patients.
- The Court also noted that drivers are in a position of subordination and dependency in relation to Uber such that they have little or no ability to improve their economic position through professional or entrepreneurial skill. Associates can increase their earnings through increased private work and specialising.
Lessons for the dental profession
Practice owners and associates should ensure that they have good, up-to-date associate agreement that accurately reflect how they work in practice; a good written agreement may not help if it does not accurately reflect reality. Associates should be given the freedoms accorded to self-employed individuals. Associates should work with the practice to ensure that both the associate and practice owner benefit from the commercial relationship.
This does not mean that practice owners should leave associates entirely to their own devices. There are questions around liability under NHS contracts and also vicarious liability of dental practice owners for the actions of associate dentists that are separate from employment and worker status.
James Goldman
Associate Director of Advisory Services, BDA
Our advisory services team offers advice to our members on a huge range of issues, such as employment law, health and safety, the NHS, business support and regulatory inspections.
