Mrs J Naylor v BH Dental Care Limited — 2024

This was a preliminary hearing on employment status and continuity of employment. The claimant, Mrs J Naylor, had first been engaged by Lonsdale Dental Ltd from 25 August 2020 as a dental therapist and hygienist under a written consultancy agreement. After April 2022 her personal company, Naylor Made Smile Ltd, began invoicing for her services, and after the practice transferred to BH Dental Care Limited in December 2022 the payment arrangement changed from an hourly rate and bonus to a percentage of patient receipts.

Employment Judge Phil Allen found that, despite the written description of the relationship as self-employed, the reality pointed to personal service, limited ability to vary hours, control by the practice, integration into the practice, and work carried out largely from patients referred through the practice. The tribunal found there was no genuine right of substitution, that the claimant worked fixed days and hours around booked patients, and that the respondent exercised control over matters such as attendance, leave, and performance. Balancing the factors, the tribunal held that she was an employee under section 230 ERA 1996 and also a worker; for the same reasons she was an employee for Equality Act 2010 purposes.

On continuity, the tribunal held that employment started on 25 August 2020 and was not broken by the claimant's resignation in August 2022, her continued work after that notice, or the later TUPE transfer to BH Dental Care Limited. The tribunal found that the claimant remained engaged without a break through the transfer and that subsequent changes to payment arrangements did not interrupt continuity. No substantive discrimination, unfair dismissal, working time, or breach of contract claim was determined at this stage, and no monetary remedy was awarded.