Dentist Wins Claim For Interim Relief
The Employment Appeal Tribunal (EAT) recently upheld a judgement confirming that a dentist was 'likely to succeed' in an unfair dismissal claim based on whistleblowing.
The case is interesting for two reasons - it illustrates the approach the Tribunal will take to claims for interim relief and it suggests that associate dentists may be employees, despite their contracts stating otherwise.
What is Interim Relief?
Where an employee is bringing an unfair dismissal claim for a prohibited reason (for example whistleblowing or union membership/activity), a tribunal can make an order preserving employment pending determination of the claim. These orders, known as 'interim relief' can only be granted where the tribunal considers the claimant is likely to succeed in their unfair dismissal claim at trial. Only employees can apply for interim relief.
Hancock v Ter-Berg
Mr Ter-Berg (Mr TB), a dentist, entered into an associate agreement with a dental practice, SSMH Ltd, which expressly provided that it was not a contract of employment capable of giving rise to 'employee' status. Under the contract SSMH Ltd provided equipment and support services. Mr TB was required to arrange his own professional indemnity insurance, to pay his own tax and National Insurance, and Mr TB had a very limited right to appoint a locum in case of a period of ill-health of more than 20 days.
During September 2017 and August 2018, Mr TB raised concerns on numerous occasions about another dentist's professional practice and treatment of patients. On 1 August 2018, SSMH Ltd invited Mr TB to a meeting to discuss his concerns. After Mr TB proposed an alternative date for the meeting, SSMH wrote to him terminating his contract with pay in lieu of notice.
Mr TB claimed that he had been automatically unfairly dismissed because he had made protected disclosures (also known as 'whistleblowing'). He applied to the ET for interim relief. SSMH applied for a postponement, arguing that without a finding that Mr TB was an employee (which they disputed), he had no right to apply for interim relief.
The ET rejected SSMH's argument and refused the postponement. It held it was likely that Mr TB would be able to establish that he was dismissed because he had made a protected disclosure and that he was an employee due to the degree of control exercised by SSMH. It therefore granted his application for interim relief. SSMH appealed on the basis that the ET had failed to determine Mr TB's employment status before considering the application for interim relief.
The Appeal
The EAT dismissed SSMH's appeal. It held that the 'likely to succeed' test should be applied to all elements of the claim, including any dispute around employment status.
How Does This Impact Your Organisation?
This decision clarifies that a tribunal must apply the 'likely to succeed' test in an interim relief application for all elements of a claim for unfair dismissal for a prohibited reason, including questions of employment status.
The 'likely to succeed' test is a high threshold and therefore it is important for claimants to consider whether all elements of the complaint satisfy that test before making such an application.
The decision also raises important questions about the employment status of associate dentists and potentially other professional or highly skilled staff. Just saying that these individuals are not employees is not enough - this needs to be reflected in working practices too.