Sejpal v Rodericks Dental Ltd
This week we are looking at employment status.
Employment status is an issue that dominated much of the employment tribunal news agenda around five years ago with companies such as Uber, Deliveroo and Addison Lee. Employment Status can be divided into three categories, employees, workers and self-employed. The test of whether someone is self-employed or a worker or employee is multi-faceted and includes:
- Whether there is an obligation to offer and accept work.
- Whether the service or work has to be performed personally or whether a substitute or subcontractor can be sent instead.
- Who controls who, how and when the work is carried out?
- The degree of business risk taken including opportunity for profit and requirement for liabilities insurance.
- The level of integration into the business including uniform, email addresses and application of company policies.
When we covered the case of Pimlico Plumbers we included a table breaking down some of the differences in employment status and rights between employees and workers. Crucially both workers and employees can bring discrimination Employment Tribunal claims but self-employed contractors cannot.
This week’s case is about dentists, which is apt given that reading case law is often as painful as drilling teeth!
Will a substitution clause prevent a dentist from having to provide personal service?
Ms Sejpal, the Claimant, was a dentist and began working for Rodericks Dental Ltd, the Respondent, as an Associate in 2009. The Claimant’s contract included a substitution clause which stated:
In the event of the Associate’s failure (through ill health maternity, paternity or other causes) to utilise the facilities for a continuous period of more than 14 days the Associate shall use his best endeavours to make arrangements for the use of the facilities by a locum tenens.
The clause went on to state that if the Claimant had to engage a locum it was her responsibility and registration to source references and arrange payment. The Claimant commenced maternity leave in 2018 and the Respondent closed the practice she worked at in December that year. The Claimant’s contract was terminated but the Claimant believed others were deployed. She commenced claims for pregnancy/maternity discrimination and sex discrimination.
To be able to bring such claims, the Claimant needed to be a worker under s83(2)(a) Equality Act 2010 whereby she had a contract of employment, apprenticeship or a contract to do work personally. The Employment Tribunal found against the Claimant. It held that the substitution clause meant there was no obligation to personally carry out the work.
The Claimant appealed and the Employment Appeal Tribunal overturned the decision. It found that if some work had to be done personally, in this case checking the references and registration of the locum, then there was a requirement for personal service as the right of substitution was fettered. The fact that registration was necessary for regulatory reasons did not matter.
The decision however does not mean the Claimant was a worker, a separate hearing will determine whether the Respondent was a client or customer of the Claimant. If it is then she is unlikely to be a worker and thus prevented from bringing a discrimination claim. However, given most dentists work exclusively at one surgery, have their own clinic room and usually have contractual provisions relating to non-solicitation of patients it is likely that this argument will be defeated.
The Takeaway Point
No, a substitution clause will not necessarily prevent employment status. If the substitution clause requires some element of personal service, even if it is not the work itself, or, fetters the right of substitution, it is unlikely to defeat worker status.
If worker status is subsequently upheld, which is likely, this would mean most dental practices are likely to have dentists as workers, not self-employed contractors and thus each dentist could be due back pay for two years’ holiday.
More broadly this claim is likely to severely weaken any impact of a substitution clause. As the Claimant had to personally provide the references and registration of the locum this required some personal service. However, if in the alternative the surgery checked this and had the right to refuse the locum if they did not have correct references this would also likely be a fettered right of substitution. Ultimately the bar of personal service has just got a lot lower.
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