Danger! Regulators at Work

Posted by Dr Roger Matthews on 18/01/2016

OK, so Pensions Auto-enrolment isn’t a topic to set the Thames on fire, but at a number of talks over the past few months, I’ve been alerting dental colleagues to a two-fold risk. The first is to be aware of your Staging Date, now that small firms are in the firing line, and to prepare well in advance of that date to have all your in-practice arrangements set up.

The second risk is that the Pensions Regulator may view your “self-employed” colleagues as, in fact, “workers” under the 2008 Pensions Act. This term includes not only those who work under a contract of employment, but also anyone who has “a contract to perform services personally and is not undertaking that work as part of their own business”.

Now that could be worrying! Associates, hygienists, therapists could in certain cases fall under that definition and be entitled to enrolment in a compliant pension scheme by law. That in turn could mean that the practice principal, partnership or company is liable for employer’s contributions.

The first issue is whether such individuals are required to perform services personally. So if an Associate falls ill, who has the right to engage an alternative performer? If it’s the practice (either in a written agreement, or, if there’s no written agreement, by ‘custom and practice’) then that could leave them open to challenge.

There have been previous court rulings and employment tribunal decisions which have found that “self-employed” dental workers are in fact deemed to be employees. These cases have hinged around such things as: “who determines the working hours?” and “who decides what holidays, and how many”?

HMRC have only ever, to my knowledge, officially approved Associateship agreement templates set out by the BDA and (historically) the Dental Practitioners Association. But even if these are followed in general, care needs to be taken to ensure that even where the Revenue is satisfied, so also is The Pensions Regulator.

And if you don’t have a written contract? My advice is to get one drawn up by an expert, and varied to suit your particular needs even if it’s based on a standard format. If you are a Denplan member, there are specific clauses that can be provided relating to capitation patients, and if you don’t have a clue where to begin knowing about Auto-enrolment, Denplan has also made arrangements with Aon/Littleblue to discount their online pension offering for small firms. Talk to your Denplan consultant for further information.