Mrs G Foster v The Secretary of State for Justice — 2025

The claimant, a non-legally qualified member of the First-tier Tribunal, brought claims for unpaid holiday pay against the Secretary of State for Justice. Employment Judge Heath, sitting alone at London South (remotely by CVP) on 2 and 3 June 2025, determined that the claimant was not a 'worker' within the meaning of section 230 of the Employment Rights Act 1996 or Regulation 2 of the Working Time Regulations 1998. The tribunal also considered whether she should be treated as a worker by reading section 3 of the Human Rights Act 1998 into the WTR/ERA (relying on Article 14 read with A1P1, or Article 8 ECHR) and concluded she should not.

The tribunal further held that, even had worker status been established, the claimant had not provided the requisite notice under Regulation 15 of the WTR (her case being that marking herself unavailable to sit amounted to implied notice), and that the claims were out of time under Regulation 30 WTR. The judgment notes that the respondent's explanation in a 2016 memorandum that the daily fee was calculated by dividing an 'equivalent full-time office salary' by 220 to incorporate a pro rata allowance for annual leave was not accurate, since there was no equivalent full-time office, and that this undermined the clarity and transparency of the arrangement.

Had the judge reached different conclusions on the earlier issues, he would not have allowed the respondent to set off sums paid as rolled-up holiday pay. However, on the issues actually determined, the claims were not well-founded and were dismissed.