Whilst NHS England is undertaking an exercise in orthodontic tendering, there are a lot of questions about TUPE and how that affects practices that may lose contract, and practices that may win them.
TUPE is a reference to the Transfer of Undertaking (Protection of Employment) Regulations 2006.
The idea of TUPE is relatively simple. If a business changes hands, the staff should be protected.
We see TUPE working when a practice is bought and sold. Even though the staff have a new employer, their employment is protected and transfers to the new owner.
TUPE and a change of contracts
TUPE also applies when a new service provider is engaged.
Say an area team engaged a dental practice to provide dentistry at the university health centre for students of the university.
Say that contract came to an end and the area team awarded that contract to someone else. The staff who worked in the practice at the university health centre would transfer to the new contract holder.
But life is not that simple, and nor is TUPE. TUPE is one of the more complex areas of employment law. It gives rise to a lot of uncertainty.
An example of a dental service provider engaged to provide dental services from a specific location, such as a university health centre, for a specific group of patients, such as students of that university, will rarely happen.
In the current orthodontic tendering exercise, it seems that contracts are ending and different contracts, for different numbers of UOAs, in different geographical areas are being put out to tender.
TUPE only applies if the activities carried out by the outgoing practices are fundamentally the same as those carried out by the new practice.
It's easy to see why TUPE applies to the above example of the university health centre. It's more difficult to imagine TUPE applying to ending an orthodontic contract in Maidstone for 5,000 UOAs and offering a new one in Ashford (20 miles away) for 7,500 UOAs.
We believe that TUPE is only going to apply to protect staff if the services provided by an outgoing practice are fundamentally the same as the services to be provided by the income practice.
For them to be fundamentally the same, we believe that the location of the practice and the patients being treated need to be very similar.
TUPE may well apply to the retendering of the only orthodontic contract in a particular town if the new practice is going to take over patients and referrals from the outgoing provider.
Who TUPE protects
TUPE provides protection to employees who work predominantly in the part of the business transferring.
Employees protected by TUPE in a transfer of a contract will have their employment protected. They will automatically move to the new practice. Their terms of employment and their length of service will be preserved. They will have protection against changes to their terms of employment.
What does TUPE mean for self-employed dentists?
TUPE does not apply to self-employed people. If associates are self-employed, they will have no protection from TUPE. Their contracts will end.
The new provider may choose to engage them and can do so on new terms.
There has been a lot of attention in the press recently about self-employed status. We have seen a number of cases, such as the cases with Uber drivers and Pimlico Plumbers.
The BDA believes that most associate dentists, engaged on a proper associate agreement, will be self-employed. We have a number of tribunal decisions backing that position. There are one or two cases where associate dentists have been found to be employees.
The employment tribunals do look at each case individually. There are some cases where tribunals may find that, in reality, when you look at the nature of the relationship, the associate is an employee.
But, in the main, associates are unlikely to be protected by TUPE.
Get advice: we are here to support you
These areas are often not that simple, and we strongly recommend that you take advice, if needed.
As a BDA Extra or Expert member, we can advise you on the application of TUPE in the current tendering process, get in touch.
James Goldman, Associate Director of Advisory Services
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