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Tag: employment status

The EAT in Ter-Berg v Simply Smile Manor House Ltd and others (available here) revives the fortune of written terms by determining their relevance to establishing employment status.

Background: The employment status of staff (i.e. whether they are employees, workers, or self-employed) dictates rights and responsibilities, the individual’s pay, how they are managed, and the claims they can bring. For example, only employees can bring unfair dismissal claims.

Employment status is determined by looking at the reality of the relationship between an individual and the employer and how it works in practice. That said, how best to  determine that reality, and the part that written terms play in this, is not always clear.

In Autoclenz Ltd v Belcher and others, the Supreme Court said that although written terms are relevant to deciding employment status, they can be set aside if they do not reflect what happens in practice. In Uber BV v Aslam, the Court went further and said that the starting point for making a decision on employment status was the statutory definitions of the relevant employment status. The Court seemed to say that written terms play only a (very) minor role, if any at all.

However, the fortunes of written terms now seem to have been revived in this latest EAT decision.

Facts: Dr Ter-Berg was a dentist who sold his three dental practices to Simply Smile Manor House Ltd (Simply Smile) but stayed on to work as an ‘associate’ at some of its surgeries. His contract (based on the British Dental Association’s standard contract) said he was not an employee.

Simply Smile terminated the contract with Dr Ter-Berg and he brought a Tribunal claim for unfair dismissal. He said that although he had started working for Simply Smile as a self-employed contractor, over time this had become an employment relationship.

Tribunal decision

The Tribunal said that Dr Ter-Berg was not an employee either at the start of his working relationship or at any time after. When explaining the reasons for its decision, the Tribunal began by considering the terms of the contract, in particular the clause which said Dr Ter-Berg was not an employee and also a substitution clause. It then moved on to check whether the terms accurately reflected the reality of the relationship between Dr Ter-Berg and Simply Smile.


The Tribunal concluded that the written terms did genuinely reflect the true agreement between the parties and how the relationship operated in practice. Dr Ter-Berg was not an employee and therefore he was not eligible to bring an unfair dismissal claim.

Dr Ter-Berg appealed. One of his arguments was that given the Uber decision, the Tribunal had made an error by treating the terms of the written contract as the starting point and by giving them ‘primacy and centrality’ rather than the realities of the relationship.

EAT decision

The EAT dismissed the appeal. It said that it was not wrong for the Tribunal to start by examining the written terms of the contract. The reference in Uber to statute being the starting point did not mean that it would always be wrong for a Tribunal’s decision to begin with an analysis of the contract. Uber had confirmed and expanded on the law set out in Autoclenz, not changed it. As long as a Tribunal follows the general approach set out in Autoclenz of looking at the bigger picture to decide the true agreement between the parties, the order in which it considers each aspect is not important.

In this case, the Tribunal had not stopped at the written terms, but instead widened its analysis to consider how the relationship worked in practice. Having done so, it was entitled to take the written terms into account to help decide that the relationship between the parties was genuinely that of self-employment.


This case is good news for employers. It confirms that the written terms of a contract are still an important piece of the jigsaw of employment status and that it is still very worthwhile having clear written terms which set out that status. If there is ever a disagreement as to employment status, the content of these will be taken into account by a Tribunal and it may even be its starting point. However, just make sure the terms do reflect the reality of the day to day working relationship – otherwise they are very likely to be disregarded.

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