Employment Status in Dr Mark Ter-Berg v Simply Smile Manor House Ltd

Should the terms of the employment contract be ignored when looking at employment status?

In the leading case on employment status, Uber BV and others v Aslam (2021), the Supreme Court warned against treating the terms of the contract as the starting point in determining whether an individual is a worker or an employee. This is because contract terms don’t necessarily reflect reality and are open to abuse.

However, in the recent case of Dr Mark Ter-Berg v Simply Smile Manor House Ltd and others the Employment Appeal Tribunal clarified that the written contract can still be taken into account as long as it is not:

looked at in isolation;

treated as conclusive in relation to the issue of employment status; and

allowed to create a presumption of employment status that is not supported by the facts and circumstances of the case.

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The Case

The case itself concerned a dentist who sold three dental practices. He agreed to stay working for the new owners for a period following the sale on what was stated to be a self-employed basis. Written terms were entered-into covering this which included a right of substitution. When Dr Ter-Berg’s contract was terminated he claimed unfair dismissal.

The Decision

The tribunal concluded that Dr Ter-Berg was self-employed and expressly stated that they had looked at the written terms when coming to this decision. The EAT held that the tribunal had been entitled to look at the written terms having first found that there was insufficient evidence to establish an employment relationship and being satisfied that the substitution clause in the agreement was genuine.

What Can We Learn?

This is an important reminder that written terms setting-out self-employed status are not meaningless. They remain an important piece of the jigsaw to be considered when looking at employment status. What Uber clarified was that those terms should not be treated as a starting point or be allowed to peddle a false reality.