Particular occupations: dental hygienists and therapists
Dental hygienists carry out educational and clinical care of individual patients, working under the instruction and general supervision of a dentist. Hygienists are permitted (after a registered dentist has examined a patient and indicated in writing the course of treatment) to carry out a number of procedures including the cleaning, scaling, and polishing of teeth, and applying preventative materials such as fluorides.
Dental Hygienists can be either employed or self-employed. There is no ‘traditional structure for the industry and each case has to be decided on its own facts. However, some assistance may be drawn from a number of previous decisions of the Secretary of State for Social Security and legal advice from DWP and HMRC solicitors:
- A hygienist working in one dental practice with conditioned hours, being ether full or part-time with a regular wage and entitlement to holiday, sick and maternity pay, will normally be considered as working under a contract of service and therefore earnings will be assessable as employment income and subject to Class 1 NICs.
- A hygienist working to several practices, choosing their own hours of attendance, receiving payment on either a sessional basis or a percentage of the NHS/private treatment charges, with freedom to determine the nature and extent of treatment with only minimal reference to the dentist, normally using their own equipment and with no entitlement to holiday, sick and maternity pay, will be considered as working under a contract for services and as such will be self-employed.
Where the arrangements fall somewhere in between these two extremes, always follow ESM0500 onwards for guidance on deciding whether a contract of service or for services exists.
The statutory regime regulating dentistry ensured that certain duties required the dentist to remain in the room or on the premises for the duration of the work carried out by the hygienist. However, this aspect of control, which is designed to protect the interests of the patient, hygienist, and dentist is largely neutral in determining whether a hygienist is operating as an employee or not.
From 31 July 2006 there was a change in the dental legislation and a relaxation of the requirement for a dentist to be on-site whilst the hygienist is carrying out these duties. From that date, hygienists could also receive payment for services direct from clients.
A dental hygienist engaged on terms which include provision to receive payment direct from the patient and set their own rates, pay a monthly sum of money to the surgery for room rental and use of receptionist services, is more likely to be self-employed.
Dental therapists undertake the same range of treatments as hygienists, but in addition are permitted to carry out extractions and simple fillings. They also work under the direction of a registered dentist (and after the dentist has examined a patient and indicated in writing the course of treatment).
Dental therapists undergo a period of training similar to, but shorter than, that of dentists. Like dental hygienists, therapists were not legally permitted to charge patients directly for their services but may do so from 31 July 2006.
Follow ESM0500 onwards for detailed guidance as to whether a contract of service or for services exists.