Dentist's 'Worker' Status Appeal Succeeds: Tribunal Erred in Ter-Berg v Malde and Hancock
The Employment Appeal Tribunal has allowed an appeal regarding a dentist's employment status, finding the original tribunal erred in its assessment of his 'worker' status. The case has been remitted for reconsideration.
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Dentist Wins Appeal Over Employment Status as 'Worker'
The Employment Appeal Tribunal (EAT) has ruled in favour of Dr Mark Ter-Berg in his appeal against a decision that he was not a 'worker' as defined by the Employment Rights Act 1996. The case, Ter-Berg v Malde and Hancock, revolved around Dr Ter-Berg's contractual relationship with Simply Smile Manor House Limited, a dental practice he previously sold.
Background: Employee vs. Worker
Dr Ter-Berg initially claimed he was unfairly dismissed after making protected disclosures, arguing he was either an employee or a worker of the company. The company disputed this. A previous tribunal hearing determined Dr Ter-Berg was not an employee. This latest appeal focused specifically on whether he qualified as a 'worker', a status that affords certain employment rights but differs from full employment.
Tribunal's Errors Identified
His Honour Judge Auerbach, presiding over the EAT, identified two key errors in the Employment Tribunal's decision:
- The tribunal incorrectly believed that the previous ruling on Dr Ter-Berg's lack of employee status automatically precluded him from being classified as a 'worker'. The EAT clarified that failing the 'Ready Mixed Concrete' test for employment does not necessarily disqualify someone from 'worker' status.
- The tribunal wrongly concluded that Dr Ter-Berg did not have an obligation to provide personal service. This related to a clause in his contract (clause 36) concerning the provision of a locum tenens in cases of absence. The EAT found that the tribunal's interpretation of this clause was flawed.
Clause 36 and Personal Service
The EAT emphasised that a conditional right to substitute another person to perform work does not automatically negate the requirement for personal service. The original tribunal's interpretation of clause 36 was deemed too broad, failing to properly consider the circumstances under which a substitute could be provided.
Case Remitted for Further Review
The EAT has remitted the case back to the Employment Tribunal to determine whether Simply Smile Manor House Limited was a client or customer of Dr Ter-Berg's business, a crucial factor in determining 'worker' status. This is the final element in the legal definition of a 'worker' that needs to be decided.
Impact on Employment Law
This case serves as a reminder that the tests for 'employee' and 'worker' status are distinct, and that previous findings on employment status do not automatically dictate the outcome of a worker status claim. It highlights the importance of carefully scrutinising substitution clauses and their practical implications when assessing whether an individual is obligated to provide personal service.
Read the entire judgement here: Dr Mark Ter-Berg v Mr Parul Malde & Dr Colin Hancock [2025] EAT 23
