A Pyrrhic victory

A dentist offers his account of defending unfair dismissal and sexual discrimination claims laid by an associate before an Employment Tribunal *

I have been in dental practice for over 35 years and since 1975 have had responsibility for three practices, which I had started from 'scratch'. In 1995, we left the NHS (apart from the care of children and young adults whom we continued to accept under the NHS), offering private treatment under our own Care Plans to make dentistry affordable and predictable in respect of costs. This has been very successful.

In 2003, one of two dentists working at my East Gate Practice gave notice and we parted amicably. I advertised and found a replacement – Mrs W. She began work at East Gate which was also staffed by a half-time dentist, a part-time hygienist and full-time ancillary staff.

Mrs W had a small child and was only prepared to work a four-day week. She assured me she could look after all her patients and wanted to receive the full Care Plan amounts. I agreed to this as long as she could look after our patients properly.

All proceeded happily and in early 2005 she told me that she was pregnant. I congratulated her and said that I was pleased that she wanted to return after the birth of her baby. I told her that I would arrange for locum cover in her absence and, as practice owner, would supervise the arrangement.

Whilst she was on leave, every month, I sent Mrs W 100% of her NHS maternity payments, her normal payment in respect of NHS fees and, although not required by our contract, all Care Plan fees less the amount paid to the locum dentists covering for her. In fact, in the year spent on maternity leave, Mrs W received from me 90% of what I paid her in the previous year when she had worked for the full twelve months, less holiday and postgraduate course leave.

Over the period of her maternity leave, I began to receive phone calls and letters from Mrs W making various complaints about her earnings. Apparently, as made clear in her subsequent witness statement, she had expected to be financially better off when on maternity leave.

Immediately on her return to work, she requested a month off over the Christmas/New Year period which is a very busy time for us. In a meeting, she told me she could not arrange cover for her children so I agreed to the time off but advised her that, whilst I appreciated her situation, she had to be aware of her professional responsibilities to the patients and myself in future.

I continued to receive insulting letters from her accusing me of dishonesty and that I had begrudged her the maternity leave. In addition, I was receiving complaints from my staff of her unreasonable treatment of them and also some unprofessional behaviour to some of our patients.

I had never before experienced such problems with a dentist and I was tiring of the unrest and was personally feeling stressed and unhappy about the whole situation. Accordingly, after much thought and perusal of the contract, I wrote to her giving three months’ notice that I was terminating our agreement.

The claim

Mrs W worked her notice period and, some weeks after she had left my practice, I received notice that she was bringing complaints of unfair dismissal and sexual discrimination against me. The next few months were to be the most distressing in all my 35 years of dental practice. I retained the services of a lawyer who specialised in employment law. I then had to spend many hours in correspondence (thank heaven for emails), informing him of the specifics of dental practice of which he had little knowledge.

In her submissions to the Employment Tribunal, in order to claim unfair dismissal, Mrs W asserted that she was an employee. Our response was that she had signed a contract agreeing to be self-employed and agreeing to pay her own tax and National Insurance contributions, although my lawyer did not think this was an adequate defence in itself. I obtained reports from my accountants and also from a firm of tax specialists who both confirmed that the circumstances in which she worked with me were consistent with a self-employed person. I also showed that as she had a list number from the NHS health board as an ‘Associate’, she was, ipso facto, self-employed since as an employee she would have been termed an ‘Assistant’ and not able to sign off her own GP17s.

In addition, I insisted that Mrs W show us copies of her HMRC Self Assessment Returns which we ultimately received. These showed that she had claimed to be self-employed and therefore derived substantial benefits to which she would not have been entitled to as an employee of the practice. Our suggestion that HMRC did not treat tax evasion lightly – nor did the GDC – resulted in, shortly after, her lawyers withdrawing this complaint of unfair dismissal. But there still was the claim of sex discrimination which, after much protracted correspondence, the other side admitted was restricted to three items: raised threshold, notice to terminate and termination.

She claimed that in raising the threshold above which her earnings increased from 40% to 50%, I had discriminated against her. The facts were that the agreement I had with all my Associates was that annually, notice being given, the threshold would be increased to reflect increased practice costs. I produced records to show that the increase had been applied equitably to all my dentists and that her claim was totally unfounded.

The Tribunal

When the Tribunal hearing commenced, I was concerned to be told by the Chairman that the papers had only then been given to him and could he and the other two members have a short recess to find out what the case was about. However, he proved to be a “no-nonsense”, very fair-minded and totally impartial individual – a Yorkshireman, with an extensive legal career with much experience of hearing cases regarding compensation for accidents in the mining industry. The other two members, one with business experience and the other with trade union experience, listened carefully, took notes and only rarely asked questions but always in polite, courteous terms.

The hearing lasted for four days and I was crossexamined for one and a half days by the complainant’s lawyer. This I found to be exhausting, especially since lawyers seem to rely on repeating the same question in the hope of hearing some inconsistency from you in your responses. My lawyer’s repeated advice to answer the question put and nothing further was sound advice but sometimes difficult, especially if you feel that your integrity is being questioned.

In one session my practice manager was called to testify. She has worked with me since 1972, and gave concise and polite answers to questions from the claimant’s lawyer, referring to her office diary which had been entered in evidence. She had to endure suggestions that she had altered her notes and was not telling the truth. But it was clear that her answers were all patently honest and when the lawyer was clearly out of her depth, the Chairman rebuked her and told her to "move on". I was very moved by the ordeal that she had to endure, without complaint, on my behalf.

The Chairman said that, in view of the complexities of this case, he would need some time to consider all the evidence before the Tribunal could give its findings. One month later my lawyer phoned to say that he had just received the result: a 42-page judgement and all the claims made against me had been thrown out. I was very relieved to have been vindicated but as I had paid many thousands of pounds in legal fees, it was a somewhat Pyrrhic victory. In Tribunal cases it is only in very rare cases that the successful side can claim costs; not to mention the months of stress and uncertainty.

Key lessons

  • ACAS can be very helpful in attempting a reconciliation of disputes but only if the other side agrees to the process (not so in my case).
  • All contracts are fine until there is a dispute.
  • Treating people fairly in most cases receives reciprocal treatment, but not always.
  • Be very careful what you write and how you express yourself in drafting letters; keep copies of all correspondence and notes of telephone conversations.
  • Retain a lawyer experienced in such matters.

* Names and circumstances in this article have been changed to maintain anonymity