Making Dental Staff Redundant

In the event of a dental practice having to close or being in distress – where the future viability is unclear – it might become necessary to consider making some or all dental staff redundant. For small dental practices this may be less complicated process than for larger dental practices.

Where a dental practice has closed or is having to close by necessity, with no likelihood of resurrection, the matters to consider will be somewhat formulaic. Where however a business is having to rationalise to save costs or reconfigure the business, selection criteria for dental staff redundancies will have to be given careful consideration.

In the event that a business is in distress and may or may not survive, it must be borne in mind that where redundancies are made and the business later needs to recruit new staff, there is a rough rule of thumb that any recruitment within six months of a redundancy could lead to a claim for unfair dismissal. While there may be ways of building a dental practice back up again, both redundancy and post-redundancy recruitment must be thought through and done carefully so as to minimise the risk of a claim being brought be a formal dental practice employee.

The law of England and Wales holds that an individual can generally be made redundant where:

• The employer in dentistry has ceased, or intends to cease, continuing the dental practice business, or
• The requirements for dental employees to perform work of a specific type, or to conduct it at the dental practice location in which they are employed, has ceased or diminished, or are expected to do so.

Redundancy should generally not be used where a formal disciplinary process or a capability or health procedure should be taking place. Redundancy should not be used as a way to circumvent fair but protracted procedures that give the opportunity to make prooper representations.

Nevertheless, less formal exit agreements might be entered into by negotiation in some circumstances, but in most such situations there will be a risk that an employee will make an application to an employment tribunal for unfair dismissal if the statutory procedure is not followed.

Note that an individual accrues redundancy rights if they have worked for an employer for two years or more. Redundancy pay varies according to the age of the employee. By way of example, the minimum that a dental practice might pay out for someone who has worked two or more years, who is over 41 years of age, will be 1.5 weeks pay per year worked after they turned 41 years of age (plus any years before that at lower rates), plus any holiday that they have accrued and any salary that they are due up to the day of the formal notice that they are made redundant. Certain caps apply on the total years and weekly amounts that can be claimed. If local employment contracts have agreed a higher pay out, that must usually be honoured but an employer can give higher awards of compensation if they choose, even if this is not set out in a contract.

Consultation about redundancy means discussing and coming to agreement with employees on how the redundancy process will be carried out. Although the law only requires you to consult staff if a dental practice is planning 20 or more redundancies (dismissals) it is still good practice to consult, in particular if only some of your staff are at risk of redundancy, there is a protocol for identifying who should qualify for redundancy.

Dental staff employees can potentially bring claims of unfair dismissal/discrimination if selected because of an alleged discriminatory reason e.g. age, sexual orientation, race, gender, among other protected characteristics.

In smaller dental practices consultation can be done within a short time frame, by writing to all staff and seeking their views. However the employer makes the final decision about who is to be made redundant.

It is usually best to follow the redundancy procedure to the letter and to pay for the employee to have the agreement looked over by an indpendent lawyer, which is part of a statutory approved process.

Where a dental employee is close to the two year qualifying employment mark and a notice period would be required to dismiss them, this might take the dental employee to the two year threshold of being entitled to redundancy pay.

For information on fair redundancy processes (the minimum that a dental employer should follow), see the ACAS guidance: Managing Staff Redundancies (step by step)

We can advise on legal, policy and compensatory issues pertaining to the making of staff redundant. Call us without obligation to see how we can assist you. Call us on: 0370 977 0021

(LG/DW)

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