Are Dentists Workers?

Worker Status – Case Win in the Employment Appeal Tribunal

In a significant post-Uber decision, the Employment Appeal Tribunal has clarified the test for determining worker status. The judgment has potential wide-reaching implications for thousands of NHS dentists.

Background

Ms Sejpal worked as an NHS dentist at Rodericks Dental practice in Kensington. Her case is that the dental practice unlawfully discriminated against her because of pregnancy or maternity.  She also brought claims under the Employment Rights Act 1996. Her entitlement to protection depends on her being a “worker” within the meaning of section 230(3) Employment Rights Act 1996 and the equivalent provision of the Equality Act 2010. Essentially this requires that she worked under a contract with the dental practice under which she agreed to perform work personally and that the dental practice was not a client or customer of a business carried on by her. Ms Sejpal does not assert that she was an employee for the purpose of Employment Rights Act 1996. 

The employment tribunal ruled that Ms Sejpal was not a “worker” and as a result her claims were dismissed. Ms Sejpal was granted leave to appeal to the Employment Appeal Tribunal.   

Employment Appeal Tribunal judgment 

The Employment Appeal Tribunal ruled that the employment tribunal did not adopt a “sound framework for the analysis of this case” and adopted an “erroneous approach” to its analysis of the agreement between Ms Sejpal and the dental practice.  

Ms Sejpal’s appeal succeeded on five of the six grounds advanced at the hearing:

• Ground One (Written Terms): The employment tribunal erred in its approach to the written terms of the contract between the dental practice and Ms Sejpal. It had wrongly concluded that the wording of the contract should be given primacy unless the contract was a “sham” (which it held it was not). The correct approach is to ascertain the true nature of the agreement and to apply the statutory test in accordance with its purpose. 
• Ground Two (Mutuality of Obligations): It was not disputed that Ms Sejpal had entered an “Associate Contract” in 2013 and that there was a single contract between her and the dental practice. This meant the concept of an “irreducible minimum of mutual obligations” (which the employment tribunal had found to be missing) did not have anything significant to add to this case.    
• Ground Three (Personal Service): The employment tribunal erred in deciding that Ms Sejpal had an unfettered right of substitution and therefore that she did not satisfy the requirement to provide personal service. Ms Sejpal did not have an unfettered right of substitution because she was not entitled to provide a locum before a 14 day period of absence had elapsed and her contract contained an express requirement that the replacement must be acceptable to the dental practice. The employment tribunal should have considered whether Ms Sejpal  was required to provide “some personal service” to the dental practice. The fact that elements of the agreement result from regulatory requirements does not prevent them from being taken into account.  
• Ground Four (Control) and Ground Five (Integration): The employment tribunal failed to assess the questions of (1) whether the Ms Sejpal carried on a profession or business undertaking and (2) whether the dental practice was a client or customer of hers (Outstanding Questions) and the concepts of control, integration and/or subrogation were potentially relevant to this analysis. 

The Employment Appeal Tribunal found that there was “only one right answer to the first two questions that arise under section 230(1)(a) ERA and section 83(2)(a) EQA”, namely there was clearly a contract between Ms Sejpal and the dental practice and there was a requirement for some personal service. The judge remitted the two Outstanding Questions to a different employment tribunal to consider. If that employment tribunal rules that Ms Sejpal is a worker, she will be entitled to proceed with her claim of unlawful discrimination.  

Implications 

We anticipate that the findings will have significant implications for NHS Dentistry. Ms Sejpal’s  relationship with the dental practice is common to most NHS dentists and her associateship contract was based on a standard British Dental Association template document. Should she succeed, affected dentists would likely be entitled to protection from discrimination and to holiday pay (including arrears).    

More broadly, the judgment provides welcome clarity regarding the test to be applied in worker status cases: “the starting point, and constant focus must be the words of the statute”. Judge Tayler suggests that in a future case an unfettered right of substitution may not preclude a finding that the predominant purpose of the agreement is personal service. He further suggests that it is questionable whether personal service need even be the predominant purpose of the agreement, provided the agreement is for the provision of “any” personal service, as required by statute.  

Neha Sejpal was represented by Peter Daly and Hannah Mathews.