Associates: can their terms be changed?
It is common for dental practice owners (principals) to take on, and make their practice facilities available to, other dentists, typically referred to as ‘associates’ or ‘performers’.
Principal-associate relationships are usually governed by written contracts, commonly referred to as associate agreements. These set out the contractual terms agreed between the parties, and also help to provide important commercial protection for a principal in the event of the relationship coming to an end. However, what happens if things change and a principal wants to change a term within the agreement? What changes can they make and what are the potential legal implications?
This will very much depend on the employment status of an associate.
Generally associates are considered to be self-employed persons who have their own patients and supply their services as independent practitioners, and the intention is that they are engaged under a contract for services as opposed to a contract of service (an employment contract). They are also considered to be self-employed by HMRC. However, the question of whether an individual is an employee comes down to a question of fact and law. The central factors in determining whether an employment relationship exists are: personal service, mutuality of obligation and control, also collectively referred to as ‘the irreducible minimum’. If one of these three core facts of the employee/employer relationship is not established then it is more likely that an individual is not going to be an ‘employee’, although this is no guarantee. When considering the employment status of an associate a court could look at a range of factors, including the way in which an individual is paid, the extent of autonomy they have in choosing their working hours and style of working, the provision of resources, and their tax treatment. This is not an exhaustive list, rather just a few examples to give an idea of what might be considered.
In light of this, some of the features you ordinarily find in dental associate agreements (typically derived from the British Dental Association’s recommended version), together with the fact that a lot of associates work hours dictated by, and carry out work provided by, their principal, could be used to argue that an associate is in fact an employee.
What if they are an employee?
If an associate was found to be an employee, then imposing a contractual change without their consent would constitute a breach of contract. In this situation an associate, as an employee, would have a number of options:
- work under the new terms under protest and bring a claim for breach of contract or unlawful deductions from wages (if the breach involves a shortfall in fees). This is sometimes known as "standing and suing";
- they could refuse to work if, for example, the change involved a change to their role, duties or hours of work;
- if the breach of contract was a fundamental change and went to the root of the contract, the associate could resign and bring a claim for constructive unfair dismissal (if they had at least two years’ service); and
- if they were not give sufficient notice they could have a claim for wrongful dismissal.
In the event that a dispute arose, the employment status of an associate in any given case would ultimately be a decision for the employment tribunal to make.
What if they are self-employed?
Notwithstanding an associate’s status, if a principal was to simply change a material term of an associate agreement without the associate’s consent it is likely that the associate would also have a breach of contract claim which could be brought in the County or High Court depending on the sums involved. However, the associate would need to be able to show that they had suffered a loss as a result of the principal’s breach. If successful, an associate would only be entitled to be compensated for any loss they could show was caused by the breach.
Therefore principals would be well advised to consult with an associate about any proposed changes and to seek their consent before making any changes in all situations. Whether or not principals want to change the terms of engagement of an associate, it is important that these are set out clearly in a written agreement. If agreement cannot be reached, the best option as a last resort will likely be to terminate an existing contract and offer continued engagement on the new terms. Though such an action is not without risk in the event that the associate can successfully argue that they are an employee.
If you would like any advice on the drafting, or the changing of terms, of an associate agreement please contact Catherine Hope at Catherine.email@example.com or 0191 226 3801 for more information.