Whether there is a contract (or agreement) for services rather than a contract of employment. The contract should avoid any terms which may indicate an employment relationship such as holidays, sickness and disciplinary policies.
Wording in the contract should specify that the relationship is that of a self-employed individual. Although not definitive in deciding whether an individual is self-employed, the contract should be clear as to their status.
There is no “mutuality of obligation”. In essence, the individual is able to accept or reject work as they choose.
Whether there is a requirement for personal service. If an individual is able to substitute another individual (e.g. a locum) to undertake their duties when they are unable to work, this is more likely to indicate a self-employed relationship. It is important to note however that it is not sufficient to simply have this right available to them, a Tribunal will look beyond this and into whether the individual has ever actually exercised the right.
Whilst the above are key indicators of a self-employed relationship, it ultimately would be a decision for a Tribunal should an individual ever challenge their employment status. A tribunal will always look beyond the wording of any agreement and consider the actual practical application which is going on between the parties. Therefore, we recommend you seek specialist legal advice should an individual challenge their self-employed status.
Can I limit the amount of time away from the Practice a self-employed individual takes?
Whilst self-employed individuals are not entitled to holidays, and therefore there is no limit to how long a self-employed individual can take away from a Practice, there will of course be occasions where Practice Owners may wish to limit the amount of time within a calendar year in order to ensure patient and practice needs are met.
A practice can limit the amount of time an individual takes away from performing their duties, providing the agreement does not refer to holiday or leave. However, the Practice Owner will need to be aware that this could be interpreted as akin to an employment relationship and therefore should only be included where necessary. If you want to include something in relation to absence in your associate agreements, our Employment Team would be happy to assist you.
What is a licence fee, why is it used?
A licence fee is the fee “paid” by the associate for the use of the Practice, it is materials and the administrative staff. This is used to ensure that the agreement does not reflect that the self-employed individual is being paid a ‘wage’ and therefore helps to protect their self-employed status.