Counsel to Public Inquiry Not a "Worker" or "Public Office Holder" for Discrimination Claims, Rules Employment Appeal Tribunal
Counsel appointed to a public inquiry has been ruled not to be a "worker" or holder of a "public office" by the Employment Appeal Tribunal.
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Employment Appeal Tribunal Clarifies Status of Public Inquiry Counsel
The Employment Appeal Tribunal (EAT) has delivered a significant judgment clarifying the employment status of counsel appointed to public inquiries. In the case of Halley v Smith and another EAT 56, the EAT ruled that Mr. John Halley, who served as lead junior counsel to the Scottish Child Abuse Inquiry (SCAI), was neither a "worker" nor the holder of a "public office" as defined by the Equality Act 2010.
The ruling means that Mr. Halley cannot bring claims of disability discrimination and victimisation against the inquiry's chair and secretary under the provisions of the Equality Act. The Employment Tribunal had initially dismissed his claims, finding that he did not possess the necessary status to bring such proceedings.
Mr. Halley appealed this decision, arguing that his appointment as counsel to the SCAI created an employment relationship, making him a "worker" under the Employment Rights Act 1996 and a holder of a "public office" under the Equality Act 2010. He contended that the nature of his commitment was fundamentally different from that of a self-employed advocate.
However, the EAT upheld the Employment Tribunal's decision. Lord Colbeck, presiding over the appeal, found that Mr. Halley's appointment was not made by, nor subject to the approval or recommendation of, a member of the executive, which is a key requirement for holding a "public office". Furthermore, the tribunal concluded that the terms of his appointment were consistent with those of a self-employed advocate, rather than an employee or worker.
Key factors influencing the decision included the fact that Mr. Halley submitted fee notes for his services, that his appointment did not constitute an offer of employment, and that he was not precluded from undertaking other work. The tribunal also noted that separate provisions under section 48(6) of the Equality Act 2010 already extend protection against discrimination to barristers and advocates, suggesting Parliament did not intend for them to be automatically classified as "workers" under broader definitions.
The EAT also dismissed Mr. Halley's third ground of appeal, which concerned an alleged error in the Employment Tribunal's procedure regarding the agreement to determine issues based on written submissions only. The tribunal found that Mr. Halley had indeed agreed to this process and had not identified specific further evidence that would have altered the outcome.
This judgment provides important clarity on the legal status of individuals appointed to roles within public inquiries, particularly in relation to employment rights and discrimination claims under the Equality Act 2010.
Read the entire judgment here: Halley v Smith and another EAT 56
