Locum Clauses; are yours fit for purpose?
We represent both dentists and dental practices alike and one question that we are continuously asked to advise on is employment status.
One of the main questions for a tribunal when determining employment status is whether the dentist is personally liable to perform the services under the contract. If they are required to personally perform the services then they will be deemed a worker, or worst case, an employee. If this is the case, practices will become liable at the very least for holiday pay and pension contributions. The key is the personal service of the dentist; if they do not have to personally perform the services, then they are likely to be truly self-employed.
The first thing we look at when advising clients is therefore whether the contract has a locum clause.
However, the assessment doesn’t end there. Simply because the contract has a locum clause will not itself mean the dentist is self-employed. The tribunal will ask if the clause is an unfettered right to send a locum whenever the dentist sees fits.
What constitutes a fettering of the right to send a locum?
In our view, requirements such as having an NHS performer number, being registered with the GDC, obtaining clinical references, checking insurance and DBS checks will not be a fettering of the right. These are legal and regulatory requirements for any dentist wishing to practice dentistry or work on an NHS contract.
However, if you add requirements such as a minimum number of years’ experience or have a final say over who can be appointed this could be considered a fettering of the right.
Can the dentist appoint a locum whenever?
Be careful of stock clauses such as the one below:
In the event of the Associate’s failure… to utilise the facilities for a continuous period of 14 days or more…’
This could give rise to arguments that a dentist cannot appoint a locum whenever they want. The reality is that dentists often do not want to appoint locums because it means they will lose money. However, that may not assist you in arguing a dentist can send a locum whenever they wish, because that is not reflected in the terms of the contract.
Also, if you are not able to show that others have utilised the locum clause within your business, the tribunal may determine the clause a sham and therefore void.
With the wave of employment tribunal decisions finding in favour of dentists, isn’t time you got your contracts and employment status checked?