“Self-employed” is a description, not a decision. The label on an associate agreement settles nothing on its own — not for an employment tribunal, and not for HMRC, which now ask the question in different ways and can reach different answers about the same person. The case everyone cites did not decide that associates are workers. It decided that the tribunal had asked the wrong question, and sent the real one back to be answered again.

What Sejpal actually decided

Sejpal v Rodericks Dental Ltd [2022] EAT 91, handed down on 16 June 2022, is the case that gets quoted whenever associate status comes up. It is usually quoted wrongly.

An associate brought claims following the end of her engagement while she was on maternity leave. The employment tribunal held she was not a worker. The Employment Appeal Tribunal held that the tribunal “did not correctly apply the statutory test and erred in law in concluding that the claimant was not a worker for the respondent.”

That sentence is where most summaries stop, and stopping there inverts the result. The EAT set out the test for worker status under section 230(3)(b) of the Employment Rights Act 1996 as four questions:

• Has the individual entered into or does she work under a contract with the other party?
• Has she agreed to personally perform some work or services for them?
• If so, she is nevertheless excluded if she carries on a profession or business undertaking…
• …and the other party is a client or customer of that profession or business.

The EAT answered the first two itself. There was a contract, and there was “a requirement for some personal service”. It then expressly declined to answer the last two, holding that it could not say there was only one correct answer, and remitted them — to a different tribunal, because the errors of law were “fundamental”.

The EAT did not hold that a dental associate is a worker. It held that two of the four questions had been answered wrongly, answered them, and sent the other two back. The questions that actually decide the case are the ones it left open.

So the honest summary is narrower and more useful than the headline: a written agreement labelled self-employed does not dispose of the first two questions, and the answer to the remaining two depends on the facts of the particular arrangement. Which means it can differ between two associates in the same practice.

Why the locum clause is the pivot — and why it is weaker than it looks

The practice’s argument was that there could be no personal service because the associate had a right of substitution. Most associate agreements contain some version of this, and many owners treat it as decisive.

The EAT called that argument “unsustainable”, because there were “fetters on the right to substitute, under the terms of the agreement, and in its practical application.” The clause required the associate, if she failed to use the facilities for a continuous period of more than 14 days, to “use his best endeavours to make arrangements for the use of the facilities by a locum tenens”.

Read it closely and the fetters are obvious. It does not permit substitution at will — only after a fortnight’s absence. It requires best endeavours, not delivery. And it operates on the practice’s facilities, which imports the practice’s say in who uses them. A right that narrow does not look like a business sending whoever it likes; it looks like an individual expected to turn up.

The wider principle, drawn in the judgment from Pimlico Plumbers, is that substitution sits on a spectrum. An unfettered right to send anyone is inconsistent with personal service. A right hedged with conditions may not be. What matters is where a particular clause sits on that spectrum and how it has actually been used — and in this case no substitute had ever been provided across nine years. A clause that has never once operated is evidence about the reality of the arrangement, not just about its drafting.

Tax status and employment status are different questions

This is the distinction that causes the most confusion, and it has become sharper, not softer.

HMRC’s Employment Status Manual once contained ESM4030, a passage on associate dentists that the profession leaned on as settling the tax position. It was withdrawn with effect from 6 April 2023, and the manual now directs readers to the general guidance at ESM0500 and to the Check Employment Status for Tax tool.

Two things follow, and they pull in opposite directions from the panic that greeted the change. First, withdrawal removed a shortcut; it did not reclassify anybody. No associate’s status changed on 6 April 2023 by operation of that withdrawal. Second, and less comfortably, the shortcut is gone for good — so a practice relying on “this is how dentistry has always done it” is relying on something HMRC has explicitly stopped saying.

And even a clean answer on tax does not settle employment rights. A tribunal applying section 230(3)(b) is asking a different statutory question, for a different purpose, than HMRC asking whether PAYE applies. The same arrangement can be self-employed for tax and still generate worker rights — holiday pay, protection from unlawful deductions, discrimination and maternity protections. Owners who assume one determination resolves the other are exposed on the side they have not checked.

What actually gets disputed

Status is the question that decides which other questions the associate can ask. In practice, the disputes that follow tend to cluster in five places:

• Notice and termination. How long, on what grounds, and what happens to work in progress. Disputes here are usually about what was agreed rather than what the law requires, which makes the drafting decisive.
• Restrictive covenants. A covenant is enforceable only so far as it protects a legitimate business interest and goes no further than is reasonable to do so. Radius-and-duration clauses copied from a template pack are not self-validating, and an over-wide covenant risks being unenforceable altogether rather than being read down to something sensible.
• NHS performance and clawback. Where UDA delivery falls short, who carries it. The contractual liability to the commissioner sits with the contract holder regardless of what the associate agreement says between the parties — the agreement can allocate the cost between them, but it cannot move the obligation. Our explainer on how the NHS dental contract works covers the 96% tolerance and clawback mechanics that generate these arguments.
• Patient lists and goodwill. Who “owns” the relationship when an associate leaves is the commercial substance behind most covenant disputes, and it is the point at which a practice’s value is most obviously at stake.
• Holiday, sickness and family leave. These only arise if the status question goes a particular way — which is why status is litigated first, and why Sejpal arose out of a maternity-leave termination rather than a fee argument.

What this means for your practice

Three structural points, none of which require a lawyer to notice:

The document is evidence, not an answer. Tribunals assess the real nature of the agreement, not only its written terms. A clause that has never operated in years of practice — the locum clause is the standard example — carries correspondingly little weight when the question is what the arrangement actually was.

Consistency between paperwork and practice is the thing you control. The gap between what an agreement says and how a practice runs is where these cases are won and lost. That is a management question before it is a legal one: if the agreement describes an independent business, and the rota, the diary control and the substitution arrangements describe an employee, the paperwork is not protecting anyone.

The money side is separate and already settled. None of this changes how associates are paid — that structure is set out in our explainer on why an associate dentist has no salary at all, including the licence-fee model and who carries the lab bill. Nor does it change the VAT position of what the practice charges: charges between dentists for shared facilities are treated as exempt where predominantly medical in nature, which our guide to VAT on dental treatment puts in context.

This page explains a legal structure and one leading case. It is not legal advice, and status is fact-specific by design — the two questions Sejpal remitted are exactly the ones that turn on the details of an individual arrangement. If you are reviewing associate agreements, that is a conversation with an employment solicitor who can see the facts, not with an explainer. What an explainer can tell you is which facts they will want to see.