John Halley v The Right Honourable Lady Smith & Anor

Counsel appointed by the chair of a public inquiry is not the holder of a public office under section 50(2) of the Equality Act 2010 unless the appointment is made by, or on the recommendation or approval of, a member of the executive. A ministerial determination of remuneration under section 39(1) of the Inquiries Act 2005 does not amount to recommendation or approval of the appointment.

An advocate instructed as counsel to an inquiry is not thereby a worker. Duties of legal advice, presenting evidence, examining witnesses and assisting with an inquiry report remain consistent with independent professional advocacy. Payment by fee notes, freedom to undertake other work, and the advocate's independent judgment support that conclusion.

The appellant was appointed by the chair of the Scottish Child Abuse Inquiry as lead junior counsel. He brought claims for disability discrimination and victimisation against the inquiry chair and secretary.

The Employment Tribunal determined a preliminary issue on written submissions. It held that the appellant was neither the holder of a public office nor a worker, and dismissed the claims for want of jurisdiction. The appellant appealed, contending that his appointment fell within section 50(2) or section 83(2)(a) of the Equality Act 2010, and that further evidence was required.

The central issue was the employment status of counsel appointed to a public inquiry under the Inquiries Act 2005.

1. Appeal dismissed. The Employment Tribunal was entitled to determine the preliminary issue on the agreed written material. The appellant had proposed that course, had not challenged the case-management order, and identified no additional evidence material to the status questions. Ground 3 therefore failed.

2. The appellant was not the holder of a public office within section 50(2) of the Equality Act 2010. His appointment was formally made by the inquiry chair, consistently with rule 2(1) of the Inquiries (Scotland) Rules 2007. The Cabinet Secretary's letter recorded the chair's intended appointment and determined remuneration and expenses under section 39(1) of the Inquiries Act 2005. It neither recommended nor approved the appointment. The statutory routes to public-office status were therefore not met.

3. The appellant was not a worker for section 83(2)(a) purposes. The inquiry duties were substantially those ordinarily undertaken by instructed counsel: legal advice, consideration and presentation of evidence, examination of witnesses, submissions, and drafting assistance. Working normally from inquiry premises did not undermine independence. The express absence of an employment contract, salary, pension or similar benefits; payment through fee notes and the appellant's clerk; absence of any weekly-hours cap; and freedom to act for others were consistent with an independent advocate. The advocate's obligation to meet the inquiry's needs did not remove his independent discretion and judgment. His relevant statutory protection as an advocate lay instead under section 48(6) of the Equality Act 2010.

• Employment Appeal Tribunal: appeal dismissed. The Tribunal upheld the Employment Tribunal's conclusion that the appellant was neither a public-office holder under section 50(2) nor a worker under section 83(2)(a) of the Equality Act 2010.
• Employment Tribunal: on 4 September 2024, determined the preliminary status issue on written submissions and dismissed the discrimination and victimisation claims for want of jurisdiction.