Miss D Martin v Mr P Carroll t/a Cripps Dental Centre — 2021

This was a preliminary hearing on whether Miss D Martin had standing to bring her claims. The tribunal recorded claims of whistleblowing detriment, discrimination because of religion or belief, and harassment relating to religion or belief. It decided first whether she was a worker for the purposes of the Employment Rights Act 1996 and an employee for the Equality Act 2010, because those status questions determined whether the tribunal had jurisdiction at all.

The tribunal accepted that the claimant had worked as a dentist for the respondent from 2010 and had previously worked under a standard BDA associateship agreement at another practice. It found that the terms governing her engagement with the respondent were materially the same as the earlier agreement, including a locum clause. The tribunal did not accept that the contractual terms were a sham or that the respondent was a client or customer of the claimant.

On personal service, the tribunal held that the locum clause gave the claimant a very wide right of substitution and was consistent with self-employment. It rejected the argument that she could substitute a dental therapist or hygienist, because that would not be a true like-for-like substitute for a dentist, and it concluded that the agreed terms were inconsistent with the necessary obligation of personal service for worker or employee status. It relied on the authorities it had cited, including Pimlico Plumbers and Sultan-Darmon, in reaching that conclusion.

On control, the tribunal found that the respondent did not exercise the high degree of control needed to establish worker or employee status. It noted that the claimant had autonomy over how she carried out her dentistry, could choose whether to undertake Botox work, could decide how many UDAs to perform and how many days to work, could decline private patients, and had negotiated the percentage of fees paid to the practice. It also found that her role as a vocational trainer did not change the contractual position, and that the respondent's NHS GDS contract did not make a difference because the claimant was not a party to it. The tribunal concluded that she was in business for herself.

Because the claimant was neither a worker nor an employee, the tribunal held that it had no jurisdiction to consider any of the substantive complaints. All of the claims were therefore dismissed, and no remedy was awarded.