Automated Summary
Key Facts
The claimant, Mrs. G Foster, is a qualified solicitor and non-legal member (NLM) of the Mental Health Tribunal (MHT) and Special Educational Needs and Disability (SEND) Tribunal. She also served on the Nursing & Midwifery Council (NMC) Fitness to Practice Committees from 2017. Her claim centers on unpaid holiday pay, arguing that the Ministry of Justice (MoJ) failed to provide holiday pay under the Working Time Regulations 1998 (WTR). The MoJ calculated her fees using a 220-day divisor to incorporate annual leave, public, and privilege holidays into daily payments. The tribunal heard the case remotely on 2-3 June 2025, presided over by Employment Judge Heath, and key issues included her employment status under the Employment Rights Act 1996 (ERA) and WTR, notice requirements for leave, and time limits for claims.
Issues
- 5. If it was not reasonably practicable for the claim to be made to the Tribunal within the time limit, was it made within a reasonable period?
- 17. Is the Claimant therefore entitled to claim unlawful deduction of wages, as claimed?
- 9. Has the Respondent failed to pay the Claimant holiday pay to which she is entitled to under the WTR / WTD?
- 1. Is the Claimant a worker for the purposes of the Working Time Regulations 1998 ("WTR") and / or the Employment Rights Act 1996 ("ERA")?
- 14. Did the Respondent fail to pay the Claimant the amount of holiday pay she was entitled to as part of her "wages"?
- 12. Is the Respondent entitled to set off the rolled-up holiday pay that they contend that they have paid to the Claimant? If so, how much is the Respondent entitled to set off?
- 15. If so, does it amount to an unlawful "series of deductions" of the Claimant's wages?
- 7. If so, how many weeks of annual leave has the Claimant carried over and what if any remedy is she entitled to?
- 11. What is the total amount of unpaid holiday pay?
- 13. Was the Claimant entitled to receive holiday pay under the WTR/WTD in circumstances where she did not provide notice in accordance with regulation 15(1) WTR? The Claimant's case is that, by marking herself as unavailable to sit, she was impliedly taking leave.
- 8. Alternatively, was the Claimant entitled to receive holiday pay under the WTR/WTD in circumstances where she did not provide notice in accordance with regulation 15(1) WTR? The Claimant's case is that, by marking herself as unavailable to sit, she was impliedly taking leave.
- 6. Did the Respondent fail to permit the Claimant to take annual leave during the period from the start of the Claimant's engagement to the date when proceedings were issued. In particular, the Tribunal will need to decide whether the Respondent: a) Specifically and transparently gave the worker the opportunity to take paid annual leave; b) encouraged the worker to take paid annual leave; and c) informed the worker that the right would be lost at the end of the leave year.
- 16. If so, does the backstop provision in section 23(4A) of the Employment Rights Act 1996 apply? The Claimant's case is that it does not.
- 10. What is the calculation of a "week's pay" for the Claimant?
- 2. If not, is the Claimant a worker for the purposes of EU law such that she would have rights to holiday pay under the Working Time Directive ("WTD")?
- 4. If not, was it reasonably practicable for the claim to be made to the Tribunal within the time limit?
- 3. Have the claims for unpaid holiday pay been presented within three months of the date on which it is alleged that the exercise of the right should have been permitted or the payment should have been made in accordance with regulation 30(2) WTR?
Holdings
- The claimant did not provide the requisite notice under Regulation 15 Working Time Regulations 1998.
- The claimant was not a worker for the purposes of section 230 Employment Rights Act 1996.
- The claimant was not a worker for the purposes of the Employment Rights Act 1996 or the Working Time Regulations 1998 having regard to section 3 Human Rights Act 1998.
- For the avoidance of doubt, the claimant's claims are not well-founded and are dismissed.
- The claimant was not a worker for the purposes of Regulation 2 Working Time Regulations 1998.
- The claimant's claims are out of time for the purposes of Regulation 30 Working Time Regulations 1998.
Remedies
The claimant's claims are dismissed as they are out of time for the purposes of Regulation 30 Working Time Regulations 1998 and are not well-founded.
Legal Principles
The tribunal applied the EU definition of a worker, considered the implications of the Human Rights Act 1998 (particularly Article 14 and A1P1), and examined the Working Time Regulations 1998 (WTR) regarding notice requirements and time limits for claims. The court emphasized that the essential feature of an employment relationship is the performance of services under the direction of another in return for remuneration, and concluded that the claimant's status as a judicial officeholder excluded her from worker protections under EU and domestic law.
Precedent Name
- Perceval-Price v Department of Economic Development
- Miller v Ministry of Justice
- Uber v Aslam
- O'Brien v Ministry of Justice
- Sullivan v Isle of Wight
- Mistlin v Ministry of Justice
- Fennoll v Centre d'Aide par le Travail 'La Jouvene'
- Denisov v Ukraine
- R (Stott) v Secretary of State for Work and Pensions
Cited Statute
- Mental Health Act 1983
- Income Tax (Earnings and Pensions) Act 2003
- Working Time Regulations 1998
- Tribunals, Courts and Enforcement Act 2007
- Employment Rights Act 1996
- Education Act 1993
- Human Rights Act 1998
Judge Name
- Employment Judge Heath
- EJ Leith
Passage Text
- The claimant's claims are out of time for the purposes of Regulation 30 Working Time Regulations 1998.
- The respondent's pleaded justification is that 'the exclusion of office-holders from an entitlement to paid annual leave under the WTR is a proportionate method which has been adopted by Parliament in order to afford protection to those most in need of it'.
- The claimant was not a worker for the purposes of section 230 Employment Rights Act 1996.