EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4102882/2022 Hearing at Edinburgh on 19, and December 2022 Employment Judge: M A Macleod Dr Mustafa Mustafa Sayegh Orthodontics Limited v Represented by D r I Hussein Lay Representative — 2023

The claimant, an orthodontist, worked for the respondent under an unsigned 2011 orthodontic associate agreement and was paid a proportion of commissionable earnings through his own company or partnership. The tribunal found that the written agreement was the most likely contractual document and that the overall working arrangements did not amount to a contract of employment, but did amount to a worker relationship for the purposes of section 230 ERA 1996. In reaching that conclusion, the tribunal considered the claimant's personal service, regular attendance at the respondent's premises, the allocation of patients by the respondent, and the extent to which he was integrated into the practice, alongside features inconsistent with employment such as payment without tax or national insurance, payment through separate entities, and the sharing of treatment and refund risk.

The unfair dismissal claim failed because the tribunal found the claimant was not an employee. The respondent had terminated the relationship on 28 January 2022 after discovering a website for Ocean Orthodontics that named the claimant as the orthodontist and offered online booking. The tribunal did not decide whether the respondent's termination process was fair, because the jurisdictional point meant the unfair dismissal claim could not succeed.

The unlawful deductions claim also failed. The claimant had said in correspondence that he was owed underpayments up to September 2021 and estimated the sum at £12,500, and he also referred to notice pay in his pre-action correspondence. The tribunal found the evidence too confused and insufficiently specific to establish what sum, if any, had been wrongly withheld or when it fell due. As a result, it dismissed the claim and no monetary award was made.