There is hope?

For a long time I have been stating that a monument should be made to those who dedicate their efforts, their time and risk their assets to found a company and create wealth and employment.

Difficulties, requirements and obligations that, established by the Administration for companies are increasingly larger and, as if these were not enough obstacles, The Tax Agency is already in charge, -with his eagerness to collect, and the labor inspection, -with its sanctioning spirit-, to turn the business adventure into a journey only suitable for the brave.

And if to the above we add a dose of lack of legal certainty that prevents the businessman from knowing the applicable legal rules, then the result is totally discouraging.. Something that has been happening in recent years to dental clinic owners and dentists.

I have more than 35 years collaborating with dental clinics throughout Spain, in the different areas of its activity; since its launch, to audit evaluations, acquisitions, labor and tax advice or drafting of professional contracts…, and with the baggage of all these years I can affirm that there is a majority feeling, by dentists, both new and experienced who want to develop their profession in a free way and not subject to an employment contract. What the new reform does is redirect practically all traffic accidents with victims to the Criminal Jurisdiction under the umbrella of the, establish autonomously, its rules of collaboration with one or several clinics, formula that gives them freedom and, why not say it, an increase in income by being able to collaborate with as many clinics as you want.

Well then, this freedom of clinical-dentist collaboration model, (which in my opinion is a fundamental right of the individual and which is rooted in the principles of freedom), is constantly being attacked by the Ministry of Labor and its labor inspection services. It is enough to review the standards that have been approved and analyze the inspection actions carried out., to verify a maximum effort to eliminate and certify the death of this type of professional collaboration contract that has contributed and contributes so much in the dental activity.

Already in the past, on the occasion of a ruling by the Social Chamber of the Supreme Court, (November 2007) I had the opportunity to write and sing a requiem for the lease contract for services in the dental sector, and since then, in the last 15 For years, no regulation or political will gave us legal peace of mind to continue using this magnificent contract in the dental sector..

That ruling called into question the “viability” or “convenience” of signing future civil service leasing contracts., between dentists and dental clinics, very common modality, until that date.

Fortunately, last month of January 2023, The Social Chamber of the Supreme Court issued a ruling unifying doctrine that seems to give respite to the harassment suffered by clinics and professionals in the use of this type of lease contract.

in it, the Supreme Court, revoked a sanctioning act issued by the Labor and Social Security Inspection against a clinic for maintaining a business relationship with seven dentists. The High Court analyzes the main characteristics of said relationship and in view of this I proceed to detail the main elements., to serve as a reference in future hiring between clinics and dentists.

The notes that have allowed it to be classified as commercial, and not work, that type of relationship was:

1. Existence of a written contract.
2. The dentist must be in possession of and present the corresponding liability insurance policy.. (civil liability).
3. must act (the dentist) with organizational autonomy.
4. Offer your services with free time, even if it is within the opening time of the Clinic
5. You can interrupt your services at your own will and logically without income.
6. It will issue the corresponding invoice based on the medical acts performed, which may be a percentage of them or an amount for each one..
7. In case of non-payment by the patient, they take the risk.
8. The price of the treatment is set by each professional, even if it can be agreed jointly.
9. The same goes for materials and products., that may be acquired from the laboratories that the Professional deems appropriate..
10. There is no hierarchical superior over the professional.
11. Each dentist has established his or her schedule and manages his or her agenda according to his or her personal criteria..
12. They usually go to the Clinic on isolated days to carry out their work and set their days off and absence for vacations..
13. They usually collaborate with more clinics.

Despite the above, The Supreme Court warns of “the need to attend to the multiple circumstances of each case” and denotes, equally, “that this doctrine cannot be considered generalizable to all cases of Dental Clinics, … but only to those in which the same characteristics as in the present case occur.”.

Conclusion: We are still under the sword of Damocles, and in case of labor inspection, we will have to “convince them” that all the aforementioned elements are met in that professional relationship and in the event of discrepancies we will be obliged to go to Court., so that they validate the commercial nature of the professional relationship.

It is not a sentence that gives us full legal security, but at least we can continue thinking that our Supreme Court continues to believe that a commercial relationship, in the field of professionals, is it possible. And highly recommended, I would say, for the professional and economic development of dentists, that the vast majority opt for this type of relationship, far from the constricted employment contracts.

A small joy for recovering that form of freedom that is reflected in the free will of the parties, collected more than a hundred years ago in our Civil Code, and that has allowed throughout this time to establish those pacts, clauses and conditions that people considered convenient, respecting the law, morality or public order.

A joy that should not make us forget the need to make specific contracts with all the necessary elements for each situation of professional collaboration that arises.

José Luis Gómez G.
Partner director / lawyer.
Delyser Abogados