SQA invigilator wins tribunal over unpaid holiday

The Herald Scotland

24-05-2025

The ruling could prove costly. According to the SQA's website, around 5,000 invigilators are employed for each exam diet, in addition to 8,000 markers and approximately 1,500 principal assessors and verifiers.
In a statement, the SQA said it was considering the implications of the decision.
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During the hearing, the SQA argued that Ms Shanks, who retired from Police Scotland after 30 years of service in 2021, was neither a worker nor an employee and likened her status to that of a self-employed contractor.
They also claimed that as many invigilators were retired they were "not in need of the usual statutory protections."
This was rejected by the judge, who noted that invigilators 'come from all stages of life and include for example students and others with several other jobs'.
Ms Shanks worked as both an invigilator and later a chief invigilator at Cumbernauld Academy. She brought the case to claim holiday pay for her work in 2023 and 2024, as well as unpaid hours linked to an administrative fee in 2024.
Employment Judge Robison, in her written decision, outlined three conditions for meeting the statutory definition of a worker: 'There must be a contract to perform work or services; there must be a requirement for the individual to undertake that work or services personally; and the other party to the contract must not be a client or customer of the claimant.'
The tribunal found that there was a contract between Ms Shanks and the SQA for short-term, fixed-task roles.
A key point in the ruling was whether Ms Shanks had to carry out the work personally. While the SQA claimed invigilators could swap shifts or appoint substitutes — implying a lack of personal service — Ms Shanks successfully argued that any such right was limited.
Substitutes were only allowed in cases of illness or emergency, had to be drawn from the same SQA-vetted centre pool, and were required to have completed SQA training.
This level of restriction, the judge concluded, supported the requirement for personal service.
Other key factors highlighted by the Judge included the high level of control exercised by the SQA, such as the use of detailed handbooks and policies. They also pointed out that Ms Shanks did not issue invoices, which would typically be expected if the SQA were a client.
The SQA also admitted it was not a client or customer of Ms Shanks' business.
The judge noted that awarding bodies, including the SQA, were required to auto-enrol eligible invigilators into pension schemes following guidance from the Department for Work and Pensions.
Taking all this into account — and recognising that the threshold for establishing worker status is lower than for employee status — the tribunal concluded that Ms Shanks was a worker in both of her SQA roles.
The SQA was ordered to pay her £348.18. This included holiday pay based on hourly invigilation work and pay relating to her pre-examination duties as a chief invigilator.
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Scottish Conservative shadow cabinet secretary for education and skills Miles Briggs said: 'This is just the latest example of the SQA's failure to get its house in order. Yet ministers have been trying to push through a set of cosmetic changes before they have been agreed or even properly examined.
'That would have included the power to hire staff before the structure of the SQA's replacement was even set out, when this case shows they are not even clear on who they currently employ.
'Scotland's qualifications system needs total reorganisation after a string of scandals, but so far Jenny Gilruth has only offered the most vague plans. The staff and students in Scotland's schools are being badly let down by the current shambolic set-up.'
Scottish Labour Education spokesperson Pam Duncan-Glancy said 'This is an embarrassing slap-down for the SQA.
'The SQA has shown time and time again that it is out of touch with the views of staff and the reality of our education system.
'The SNP has failed to deliver the genuine reform our education system needs, but Scottish Labour will continue to work to make sure the upcoming Education Bill replaces the SQA with a body that is fit for purpose.'
The EIS said: 'While the EIS does not represent SQA invigilators, there should be a clear expectation that the SQA, as a public body, should comply with all relevant statute when entering into contracts with those acting as invigilators.
"Having signed up to the Scottish Government's Fair Work framework, it is also incumbent on the SQA to adhere to the principles of Fair Work in both policy and practice.' – EIS spokesperson
An SQA spokesperson said: 'We have received the tribunal ruling relating to the employment status of Invigilators and Chief Invigilators and are considering its implications and next steps.'