A specialist tribunal member who sits in the First Tier Tribunal has had her employment tribunal claim for holiday pay dismissed after the ET found she was not a worker. 

A calendar marks 'annual leave'

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Georgina Foster, a qualified solicitor, was appointed a specialist member of the Mental Health Review Tribunal in 2013. Later, she was also appointed as a non-legal member of the Special Education Needs and Disability (SEND) tribunal while working part-time as a local authority solicitor. She was described in the employment tribunal judgment as having ‘a “portfolio career”’.

She argued the respondent, the secretary of state for justice, failed to pay her the amount of holiday pay she was entitled to. Foster claimed she was a worker in that she was required to sit a minimum number of 30 days per year, paid monthly as a worker, required to undertake mandatory training and was integrated into the organisation as she was subject to an appraisal system and could not negotiate her pay.

In a written judgment, employment judge Heath said Foster did not work under a contract, ‘but held office’ and she ‘cannot satisfy the definition of worker under section 230’ of the Employment Rights Act 1996.

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He added: ‘Whether the parties are in a contractual relationship depends on the intention of the parties, and not on the fact that there are features to the relationship such as remuneration, duties to be performed and other such matters.

‘There are a number of factors within the terms of office of a judicial office holder which would be equally at home in a contract of employment, such as obligations to perform duties, agreement as to remuneration, obligations to undertake training, and other benefits and burdens. These do not turn the relationship into a contractual one.’

The judge also found Foster was not a worker under the EU definition as set out in case law. He added that had Foster had ‘worker’ status, her claims over holiday pay would not have been well-found and would have been dismissed and, had the claims advanced, they would have been out of time.