February 16, 2023
Historically, associate dentists have been treated as self-employed by HMRC. This was an informal arrangement based upon a standard agreement approved by the British Dental Association. which was specifically mentioned in HMRC guidance. However, from 6th April 2023, this guidance is being withdrawn.
What does this mean?
There will be no automatic treatment as being self-employed. Each case will be decided on the factual relationship between any particular associate dentist and the dental practice where they work at. This decision will be made on a case-by-case basis.
Tax legislation does not define the differences between employment and self-employment, which means that HMRC will rely on decisions made by the courts. The courts made their decisions firstly on the terms set out in a written contract between the parties but also on the actual relationship between the parties if these differ from the written contract.
In other words, the contract cannot be a sham; it must reflect the actual working arrangement between the parties. The contract has to be a contract for services to retain self-employed status and not a contract of services which are associated with employment statuses. This subtle difference is all too important.
Let’s have a look at the crucial areas of a contract applicable to making this distinction:
Substitution
If the associate dentist has the option to send a substitute worker to complete work in their place, it suggests that you are not providing the service personally, which is a requirement to be an employee.
Control
If the practice controls the associates’ workload and the way in which it is conducted, it suggests that they are an employee as they are not deemed as providing a specialist service.
Mutuality of obligation
Where it is incumbent upon the practice to provide work and for the associate to accept that work this points towards employment status although this obligation can be present in both contracts of service and contract for service in varying degrees.
Risk
If an associate is exposed to any financial risk this would suggest that the associate is self-employed i.e., is the level of profit earned down to the sole actions of the associate and can they make a financial loss if they get it wrong? Are they in business in their own right?
Simply put, those dental associates whose working arrangements are subject to a higher degree of control are most likely to see their employment status change, to that of an employee.
If HMRC decide to challenge the status of a particular associate dentist they will approach the dental practice as the deemed employer and should they be successful, the dental practice will become liable for the income tax and national insurance payments of all their associate dentists.
The responsibility for checking employment status rests solely with the dental practice and there are severe penalties for getting it wrong. It is important therefore for all dental practices to use the time before 6th April 2023 to review their arrangements and contracts with their associates and start to implement changes as soon as possible.
How can Hentons help? We offer a free initial consultation to discuss your current arrangements and advise on whether you need to make any changes. Any follow-on work to implement these changes would be done on a fixed fee basis.
Get in touch with our experts to find out more!
Greg Langley
t: 0113 831 5214
Gary Olding
t: 0113 831 5199
e: GaryO@hentons.com
