A non-legal tribunal member is not a ‘worker’ and therefore not entitled to holiday pay, an employment tribunal has found.
Mrs P Varley, as she is referred to in the employment tribunal judgment, brought a claim against the secretary of state for justice that she not been paid for holiday that she has taken since October 1998. Varley served as a non-legal member of the Special Educational Needs and Disability Tribunal, and its predecessors, since 1998. Her current role is as a specialist member for the First-Tier tribunal (special educational needs and disability) where she sits on panels with a judge and one or two specialist members.
Varley accepted, the judgment noted, that she had not been prevented from taking annual leave. She took between 38 and 67 days’ holiday in each complete year from October 1998 to December 2023.
Considering Vardy’s worker status, employment judge Deeley said that her appointment as a non-legal member was that of an office-holder under the terms of her appointment. ‘She did not enter into a contract with the respondent. I appreciate that many of the terms of appointment appear to be similar to those that might be found frequently in a contract of employment. However, that does not mean that the claimant is [a] worker,’ the judge said.
Referring to the Supreme Court judgment of Gilham v Ministry of Justice, the judgment said: ‘In Gilham, the Supreme Court held that judges to do not work ‘under’ or ‘for the purposes of any state appointed body or individual. They held that judges are remunerated by virtue of their office, rather than the services that they perform.
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‘The same analysis applies to non-legal members, such as the claimant. They are also officeholders and are remunerated because of their office as a judicial officeholder, rather than for the services that they perform. A non-legal member is not a worker for the purposes of the [working time directive]. The tribunal therefore cannot interpret the [Working Time Regulations 1998] in such a way that the definition of ‘worker’ includes non-legal members.’
The judge disagreed with Varley’s argument that the failure to pay holiday was a breach of her human rights. Her evidence did ‘not meet the high threshold required of very serious consequences for the claimant affecting her private life to a very significant degree’, the judge said.
Varley was found to not be a ‘worker’ for the purposes of section 230 of the Employment Rights Act 1996 (ERA) and regulation 2 of the working time regulations 1998 (WTR). The definition of ‘worker’ under the WTR and/or the ERA should not be interpreted to include her status as a non-legal member. Varley’s holiday pay claim was dismissed.
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