J Halley v The Right Honourable Lady Smith and J-A Jamieson: 4103196/2022 and 4101423/2023
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4103196/2022, 4101423/2023
Between
John HalleyClaimantJulie-Ann JamiesonRespondent
Before
Employment Judge M A MacleodDate 4 September 2024
JUDGMENT
The Judgment of the Employment Tribunal is that the claimant’s claims against the respondents are dismissed for want of jurisdiction.
REASONS
[1]Following a Preliminary Hearing on 24 May 2024, the Tribunal issued a Note in which it was directed that the following preliminary issue should be ETZ4(WR) determined by way of written submissions only (following the agreement of the parties to such a process), and that the parties should present those submissions to the Tribunal by 5 July 2024: a. Is the claimant the holder of a public office in terms of section 50(2) of the Equality Act 2010; which failing, is the claimant a ‘worker’; and in either case, does the claimant have the necessary status upon which to found a claim of discrimination in this case?[2]Parties did present their written submissions by that date.[3]I set out below a brief summary of the submissions made by the parties, followed by the relevant law to be considered; and then set out the Tribunal’s decision with the reasons therefor. Claimant’s Submissions[4]The claimant identified the first critical issue as being whether the claimant is the holder of a public office in terms of section 50(2) of the Equality Act 2010 (“the 2010 Act”), and indicated that this may be a matter for evidence before a final factual determination may be made by the Tribunal.[5]He also submitted that this issue depends upon whether the claimant, when appointed as Lead Junior Counsel to the Historical Child Abuse Inquiry, was merely receiving instructions as in the normal course of his practice as a self-employed Advocate acting for clients, or was appointed to the public office of Lead Junior Counsel to the Inquiry.[6]For ease of reference in the course of this Judgment, I shall refer to the Scottish Child Abuse Inquiry, or the Historical Child Abuse Inquiry, as “SCAI”.[7]The claimant referred to the UK Supreme Court’s decision in O’Brien v Ministry of Justice [2013] UKSC 6[2013] ICR 499, in which the Supreme Court held that they had sufficient evidence on which to decide whether as a recorder the claimant in that case qualified as a worker for the purposes of European Union law.[8]He argued that by “obvious analogy” the evidence in his case showed that the claimant’s commitment to the appointment as Lead Junior Counsel to the SCAI was of a substantially different character from normal practice as a self-employed Advocate. As an Advocate, subject to professional requirements and the cab rank rule, the claimant was, he submitted, a free agent who could make his own choices as to the work he did and where he did that work. He was not normally subject to the control of others in that practice, and performed personal services as a self-employed person for clients.[9]By contrast, the claimant argued, in his role as Lead Junior Counsel to the SCAI, the claimant was committing himself to public service, in a public inquiry, “supposed to be conducted” under the Inquiries Act 2005, for the duration of the SCAI. The public inquiry panel was comprised of 3 office holders. 10.The claimant maintained that he agreed to work for a minimum of 40 hours per week for at least 42 weeks per year, and similar agreements were reached with Senior Counsel. 11.This appointment was necessarily indicative of a different character of commitment required from normal practice as a self-employed Advocate; there was, in addition, no client. He submitted that the role was analogous to that of an Advocate-Depute when agreeing to serve as part of the Crown Office. 12.The claimant referred to a letter dated 28 August 2015 by Angela Constance MSP to the then Chair of the SCAI, Susan O’Brien QC (as she was then), and submitted that by that letter the Scottish Ministers provided a determination in relation to the remuneration and expenses of the claimant as Inquiry Counsel under section 39(1) of the Inquiries Act 2005, to which reference was then made. 13.There was at the very least some component of approval which was considered necessary to secure from a member of the Executive, within the meaning of section 50(2)(b) of the 2010 Act; otherwise, he questioned, why bother seeking a section 39 determination in relation to the claimant’s expenses? 14.He went on to submit that section 39 of the Inquiries Act 2005 makes specific reference to specific public offices, for the purposes of section 50 of the 2010 Act, in respect of which the Minister may agree to pay specified expenses to those holding the offices mentioned, including “Counsel to the Inquiry”. 15.The SCAI began its life with a 3 person panel, but now is comprised of only one person, the 1st respondent. The claimant submitted that the 1st respondent’s consistent and repeated theme of acting as the “all-powerful ‘Chair’, imbued in some nebulous and extra legislative way with the powers of a judge, is not founded in the provisions of the 2005 Act.” 16.He argued that it appears that the Minister considered it necessary that her agreement was required, in terms of section 39, in relation to the expenses to be paid to the claimant as part of the terms of his appointment to one of the public offices mentioned in section 39, namely that of Counsel to the Inquiry. 17.He submitted that Advocates other than those appointed as counsel to the Inquiry are instructed to carry out work for SCAI, but that that was of a different character to the work carried as Counsel to the Inquiry. It requires, he said, the agreement or approval of the Minister in respect of expenses to be paid and other matters specifically addressed, and it entails commitment at a full-time working level until the end of the Inquiry. 18.Crucially, in the claimant’s submission, the work of Counsel to the Inquiry appears to be viewed by the respondents as subject to the direction and control of others, especially by the 1st respondent. As a result, it can be concluded on the available evidence that the character of the claimant’s commitment to his appointment as Lead Junior Counsel to the SCAI was fundamentally different to his normal practice as a self-employed Advocate. 19.He also highlighted what he argued was a further difficulty in the submissions of the respondents, namely that their position seemed to be that the solicitor to the SCAI was seen as an employee of the Scottish Government, which would be problematic in light of the requirement under the Inquiries Act 2005 that the SCAI should be independent of government. 20.The claimant submitted that the claimant’s appointment, in terms of the Minister’s Determination, has never been revoked or terminated, to date. 21.He referred to Gilham v Ministry of Justice [2019] UKSC 44[2019] ICR 1655, and to the statement by Baroness Hale of Richmond PSC at paragraph 43, making a distinction which he submitted was valid and applicable to the claimant’s appointment as counsel to the Inquiry: “I agree. It would not be difficult to include within limb (b) an individual who works or worked by virtue of appointment to an office whereby the office-holder undertakes to do or perform personally any work or services otherwise than for persons who are clients or customers of a profession or business carried on by the office-holder.” 22.He argued, therefore, that the claimant’s appointment to the position of Counsel to the SCAI amounted to appointment to a public office. 23.He referred to section 17(3) of the Inquiries Act 2005, in which the Chair is required to act with fairness sin making any decision as to the procedure or conduct of the Inquiry, and with regard also to the need to avoid any unnecessary cost, whether to public funds or witnesses or others. 24.The claimant referred to the conclusion of the letter by Angela Constance MSP dated 28 August 2015, in which it was said that “The appointment of Counsel does not constitute an offer or contract of employment and does not attract any salary, pension or similar benefits.” He argued that this statement by the Minister appeared to highlight that an employment relationship was being entered into, of a fundamentally different character to the claimant’s normal basis for practice as a self-employed Advocate that she decided to state specifically that no contract of employment was being entered into. He submitted that this was the strongest evidence that an employment relationship was established and existed between the claimant, the SCAI and the Minister of the kind identified in Gilham. 25.The claimant also referred to a letter by Susan O’Brien QC recording her wish, on 4 September 2015, that the claimant be appointed to act as Lead Junior Counsel to the SCAI, noting his acceptance of the appointment and setting out the formal terms of his appointment. 26.The enduring nature and other facets of the commitment envisaged provide evidence, in the claimant’s submission, that this was distinct from the claimant’s self-employed practice as an Advocate. 27.He submitted that this is an issue of importance beyond this claim, on the basis that a number of public inquiries are currently ongoing in the UK at present. How, he asked, would the respondents’ arguments work in relation to an Advocate appointed to a public inquiry in England and Wales with a section 39 Determination made by the relevant Minister approving fees and other matters referred to in the claimant’s appointment documentation? Such an Advocate could not be carrying out their normal work as a selfemployed Advocate. 28.The claimant then set out the provisions of section 50 of the 2010 Act, and also the definition of “relevant person” in section 52(6) of the 2010 Act. He argued that the 1st respondent is a relevant person for all purposes set out in the table under section 52(6), and the 2nd respondent is a relevant person for the purposes of the 4th matter identified, namely a person who has the power in relation to which the conduct in question relates. He submitted that the 2nd respondent had responsibility for the claimant’s fees, in the documentation identifying the claimant’s appointment. 29.The claimant noted that judicial office holders are “workers”, and submitted that the considerations in such cases as O’Brien and Gilham are closely analogous and relevant to the law applicable to office-holders under section 50(2)(b) of the 2010 Act. 30.By a strong analogy, the claimant submitted, counsel to a public inquiry fall to be regarded as having the protections afforded by the 2010 Act. The source of this right is to be regarded as being European Law (Gilham, paragraph 8). He argued, therefore, that as well as having status as an office-holder, the claimant should be regarded as a worker for the purpose of the present proceedings, and therefore that it follows that he has the right to pursue a discrimination claim under the 2010 Act. 31.He invited the Tribunal to find accordingly. Respondents’ Submissions 32.For the respondents, Mr Napier noted that in the summary of claim attached to the ET1 the claimant referred to himself as, inter alia, “an Advocate”, but that the claimant now asserts that his claim is brought under section 50(2) of the 2010 Act, that is, as the holder of a public office, the primary status upon which he relies. Further, Mr Napier noted that the claimant, in his submissions, that if he is not the holder of a public office, he is a worker, and that as the holder of either status, he has the necessary status to found a claim of discrimination. Finally, Mr Napier noted that in the Note following Preliminary Hearing of 24 August 2022, it was recorded that the claimant does not rely upon his status as an advocate and makes no claim under section 48(6) of the 2010 Act. 33.The respondents submitted that none of the criteria set out in section 50(2) of the 2010 Act apply to the claimant. 34.They referred to:[1]The email dated 7 July 2015 from the claimant to the SCAI inbox (“infocab”); and[2]The letter dated 4 September 2015 from Susan O’Brien QC, the then chair of the SCAI, which was at the time known as “the Historical Child Abuse Inquiry”. 35.Mr Napier maintained that on a plain reading of these documents it was clear that the claimant applied to the SCAI as a practising advocate to be appointed as a counsel to the inquiry and was appointed by the chair as such. The Inquiries (Scotland) Rules 2007 recognise that all appointments of counsel to do inquiry work are made by the chair. 36.The letter of 4 September 2015 set out the work to be carried out by the claimant, including providing legal advice to the Inquiry panel and Inquiry team in relation to any matter connected with the SCAI; consideration of documentary and other evidence before the Inquiry , and advising on evidence to be presented to, and the witnesses whose evidence was to be taken by, the Inquiry; appearance at the oral and other hearings of the Inquiry to present evidence, examine witnesses and make submissions as required; assisting in drafting the report of the SCAI; and possibly acting as counsel for the Chair and other members of the panel in any court proceedings arising out of the SCAI. 37.Mr Napier submitted that the work described is that of an advocate in practice at the Bar, and that the letter also made clear that the claimant would be required to submit fee notes to the Secretary to the Inquiry. He pointed out that it is accepted by the claimant that when, at a later stage, payment was not made, he referred the matter of his fees to the Faculty of Advocates for enforcement and collection, the infrastructure available to advocates acting as advocates to seek to collect fees and resolve fee disputes. 38.He also argued that it was clear that the appointment was being made by Ms O’Brien in her capacity as Chair to the SCAI. The appointment was not made by a member of the executive nor on the recommendation of, or subject to the approval of, a member of the executive, as required by section 50(2)(a) and (b) of the 2010 Act. He submitted that there are no provisions in the Inquiries Act 2005 or in the 2007 Rules which empower any member of the executive to appoint any lawyers as counsel to a public inquiry, consistent with the fundamental principle that public inquiries established under the 2005 Act are independent of the executive and not subject to ministerial control. He went on to say that the only matter to be decided by the executive is the level at which the executive will agree to fund any fees and notes of expenses rendered by counsel appointed as counsel to the inquiry for any inquiry work carried out by him or her. He referred to the letter by Angela Constance, Cabinet Secretary, to Ms O’Brien dated 28 August 2015, confirming the basis upon which and limits to the funding she agreed to provide under and in terms of section 39(1)(b) of the 2005 Act. This followed Ms Constance learning from Ms O’Brien that she intended to appoint the claimant to act as counsel to the inquiry. She did not give her approval to the appointment, nor was she asked to. 39.Mr Napier went on to submit that Ms Constance was not approving the appointment of the claimant as counsel to the inquiry. She had no power to do so, as the power of appointment was only exercisable by the chair, and the identity of the person whom the chair was appointing was immaterial to the exercise of the Cabinet Secretary’s determination of the level of remuneration and expenses which she agreed to fund. 40.He submitted that there is nothing in the Inquiry Rules or in the primary legislation to suggest that identification of the proposed appointee is a prerequisite of the Minister’s exercise of the power conferred by section 39(1)(b). 41.Mr Napier submitted that the claimant’s appointment was not one to which section 50(2)(a) or (b) applied, and that the claimant was not seeking to argue that section 50(2)(c) or (d) was relevant to his appointment. 42.Finally, in this regard, Mr Napier repeated that the claimant had confirmed that he did not wish to rely upon section 48 in making this claim (Note of Preliminary Hearing held on 24 August 2022). 43.Mr Napier went on to address the question of whether or not the claimant could be categorised as a worker. He acknowledged that those who are so defined may be entitled to bring a complaint relating to part 5 of the 2010 Act, but submitted that the claimant was not, by reason of his status as a practising advocate, within that category. It would be open to the claimant to make a claim under section 48(6) of the 2010 Act, which is premised on the basis that a practising advocate is not a worker as defined by section 83(2)(a). 44.The claimant was an independent provider of services with the status, rights and obligations of those holding the office of advocate, as authoritatively explained by Lord President Inglis in Batchelor v Pattison and Mackersy (1876) 3R 914, at 918. 45.Mr Napier also referred to “The Guide to the Professional Conduct of Advocates” (Seventh Edition), at Section 1 (1.2.3) and Section 2 (2.1.1 and 2.1.2); and to the definitions of worker in section 83(2)(a) of the 2010 Act and in section 230(3) of the Employment Rights Act 1996 (ERA); and also to Lord Wilson’s explanation in Pimlico Plumbers Ltd v Smith [2018] ICR 1511. 46.He went on to address a number of points within the claimant’s submissions, of which note has been taken in reaching the decision below. 47.Mr Napier concluded by submitting that the claimant cannot establish that he has the status of a “holder of public office” under domestic law, or a “worker” under domestic or EU law. He must, he said, show that he is one or the other if the Tribunal is to hear his claims of discrimination. His claims should accordingly be dismissed on the basis that the Tribunal lacks jurisdiction to hear them. The Relevant Law 48.Section 50(2) of the 2010 Act provides: “A public office is –(a) an office or post, appointment to which is made by a member of the executive;(b) an office or post, appointment to which is made on the recommendation of, or subject to the approval of, a member of the executive;(c) an office or post, appointment to which is made on the recommendation of, or subject to the approval of, the House of Commons, the House of Lords, the National Assembly for Wales or the Scottish Parliament;(d) an office or post, appointment to which is made by the Lord Chief Justice or the Senior President of Tribunals.” 49.Section 83(2)(a) of the 2010 Act provides: “’Employment’ means – (a) Employment under a contract of employment, a contract of apprenticeship or a contract personally to do work…” 50.Section 230(3) of ERA provides: “In this Act ‘worker’ (except in the phrases ‘shop worker’ and ‘betting worker’) means an individual who has entered into or works under (or, where the employment has ceased, worked under) – (a) a contract of employment, or (b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer or any profession or business undertaking carried on by the individual, and any reference to a worker’s contract shall be construed accordingly.” 51.Section 39(1) of the Inquiries Act 2005 provides: “The Minister may agree to pay to – (a) the members of the inquiry panel, (b) any assessor, counsel or solicitor to the inquiry, and (c) any person engaged to provide assistance to the inquiry such remuneration and expenses as the Minister may determine.” 52.I had reference to the authorities to which the parties referred me. Discussion and Decision 53.I remind myself of the issue which is the sole matter for determination in this Judgment: a. Is the claimant the holder of a public office in terms of section 50(2) of the Equality Act 2010; which failing, is the claimant a ‘worker’; and in either case, does the claimant have the necessary status upon which to found a claim of discrimination in this case? 54.Firstly, then, is the claimant the holder of a public office in terms of section 50(2) of the 2010 Act? 55.The claimant relies upon section 50(2)(b), namely that he was appointed to an office or post, appointment to which was made on the recommendation of, or subject to the approval of, a member of the executive. 56.The claimant’s initial point is that there is some evidence available in the papers, but that it may be that no final determination can be made without evidence being led. At this stage, I consider that the parties have agreed – indeed, it was the claimant’s proposal – that this issue be determined by way of written submissions. Certain documents were presented by the parties, which I have treated as agreed evidence, on the basis that both parties referred to the documents as valid and relevant and nothing therein was disputed; and nothing further has been referred to by either party as having any additional relevance or impact upon the determination of these issues. 57.2 documents of importance have been presented to the Tribunal by the parties. I have treated the terms of these documents as agreed, as above. 58.Firstly, the letter by Angela Constance MSP, Cabinet Secretary for Education and Lifelong Learning, dated 28 August 2015 and addressed to Ms Susan O’Brien QC, Chair of the “National Inquiry into Historical Child Abuse”, as she was then designed. 59.The letter stated: “Dear Susan NATIONAL INQUIRY INTO HISTORICAL CHILD ABUSE NOTICE TO THE CHAIR OF SECTION 39 DETERMINATION This letter provides a determination in respect of the remuneration and expenses of Inquiry Counsel under section 39(1) of the Inquiries Act 2005 (‘the Act’). You have advised that you intend to appoint John Halley, Advocate as Junior Counsel to the Inquiry. In respect of this appointment I make the following determination: Remuneration The hourly rate to be applied to work undertaken by John Halley, Advocate as Junior Counsel to the Inquiry is £140 plus VAT. No cap is to be applied on the maximum number of hours that may be worked in his capacity as Junior Counsel to the Inquiry in any week. Expenses Expenses will be paid at the equivalent of the rates payable for travel and subsistence for permanent Scottish Government employees. Fees and expenses are not payable in respect of any time spent by Junior Counsel travelling between home and the Inquiry officers. Fees and expenses are only payable in respect of work undertaken in relation to the Inquiry. As Chair you will be mindful of your responsibilities under the Act and in particular section 17(3). The appointment of Counsel does not constitute an offer or contract of employment and does not attract any salary, pension, or similar benefits.” 60.Secondly, the letter by Ms O’Brien to the claimant dated 4 September 2015, whose terms are as follows: “Dear John, Historical Child Abuse Inquiry As previously discussed, I wish to appoint you to act as Lead Junior Counsel to the Historical Child Abuse Inquiry. You have accepted this appointment, and this letter makes your appointment formal. Commencement and duration of appointment Your appointment commences as at the date of this letter. Subject to the following paragraph, your appointment will terminate at the end of the Inquiry in terms of s14(1) of the Inquiries Act 2005 (the ‘2005 Act’). Work of Counsel to the Inquiry As you are aware, the work of Counsel to the Inquiry will include: Providing legal advice to the Inquiry panel and Inquiry team in relation to any matter connected with the Inquiry eg the Inquiry’s terms of reference, scope of the panel’s powers, requests for evidence, protocols/procedures of the Inquiry, designation of core participants, identification of witnesses and warning letters. Consideration of documentary and other evidence before the Inquiry and advising on evidence to be presented to, and the witnesses whose evidence is taken by, the Inquiry; appearance at the oral (and any other) hearings of the Inquiry to present evidence, examine witnesses and make submissions as required. Assisting in the drafting the report (sic) of the Inquiry. Possibly acting as counsel for the Chair and other members of the panel in any court proceedings arising out of the Inquiry. Place of work You will normally undertake your work for the Inquiry from its office premises. There will, however, be a facility for remote working from home or elsewhere. The venue(s) for the public hearings of the Inquiry has not yet been identified. Remuneration, expenses and fee notes The Cabinet Secretary for Education and Lifelong Learning has made a Determination under section 39 of the 2005 Act with regard to your appointment as follows: You will be paid the hourly rate of £140 plus VAT. No cap is to be applied on the maximum number of hours that may be worked in any week in your capacity as lead Junior Counsel to the Inquiry. Expenses will be paid at the equivalent of rates payable for travel and subsistence for permanent Scottish Government employees. Details of the Scottish Government travel and subsistence scheme will be sent to you separately. Fees and expenses are only payable in respect of work undertaken in relation to the Inquiry. Fees and expenses are not payable in respect of any time spent by you travelling between your home and the Inquiry office. Your appointment does not constitute an offer or contract of employment and does not attract any salary, pension or similar benefits. A copy of the Determination is attached for your records. I should also mention that, in terms of section 39(6) of the 2005 Act, the total amount that Ministers have paid under that section will be published in due course. The Secretary to the Inquiry, Julie-Anne Jamieson, will handle all fee notes and requests for expenses in the first instance, and I should be grateful if you would arrange for your clerk to liaise with her regarding the rendering and payment of fee notes. Fee notes must contain details of the work done and the hours worked each day. Claims for expenses must be accompanied by relevant supporting vouchers. Information technology The Inquiry team will be making use of an IT system and equipment provided by the Scottish Government and to enable secure communication with the Inquiry team and access to its documents when working remotely you will be provided with a dedicated laptop. You will be required to go through some standard Scottish Government security vetting in order to use the IT system. It is expected that you will adhere to the terms of the Scottish Government IT Code of Conduct and to any relevant policies and guidelines issued by the Scottish Government or by the Chair. The setting up date for the Inquiry is expected to be 1 October 2015 and the Inquiry team will be in touch with you shortly to discuss your availability prior to that date. Yours sincerely Susan O’Brien QC Chair of the Historical Child Abuse Inquiry” 61.The claimant, in his submissions, suggested that section 39 of the Inquiries Act 2005 (the 2005 Act) demonstrates as a matter of fact that there was “at the very least some component of approval which was considered necessary from a member of the executive; otherwise, why bother seeking a section 39 Determination in relation to the claimant’s expenses? He also suggested that section 39 made “specific reference to specific public offices”, including that of counsel to the Inquiry. 62.In this case, the section 39 Determination is contained within the letter set out above by Ms Constance MSP to Ms O’Brien on 28 August 2015. 63.The claimant’s argument appears to be that “some component of approval” from a member of the executive was considered necessary. The difficulty for the claimant, as it seems to me, is that the component of approval relates to the level of expenses to be agreed by the Scottish Government in terms of section 39, rather than approval of the appointment of the claimant as Counsel to the Inquiry. 64.Indeed, it is plain from the terms of the letter that Ms Constance is merely noting the intention of Ms O’Brien to appoint the claimant as Junior Counsel to the Inquiry. She is not granting approval to his appointment. There is no basis upon which it can be said that the claimant was appointed to an office or post, appointment to which was made either on the recommendation of, or subject to the approval of, a member of the executive (section 50(2)(b)). 65.The power to appoint the claimant rested entirely with Ms O’Brien as the Chair of the SCAI, and this is accepted by Ms Constance in her letter. 66.It is also appropriate to address the claimant’s assertion that section 39 makes specific reference to specific public offices. Section 39 makes no such specific reference. There is no reference at all to any “public office”. The claimant seeks to interpret the appointments mentioned therein as public offices, but in my judgment there is no specific reference to any public office in that section. 67.The claimant’s references to Gilham and O’Brien do not provide any assistance in the instant case. Both cases related to individuals who were judicial office-holders, and accordingly in a different position to that of an advocate such as the claimant accepting instructions to act as counsel to an Inquiry. 68.The letter of appointment to the claimant is clear in its terms: the appointment is made by the Chair of the SCAI, Ms O’Brien, and was accepted by the claimant on that basis. 69.Both the letter by Ms Constance and the letter by Ms O’Brien make clear that the appointment of counsel to the Inquiry does not constitute an offer or contract of employment. The claimant’s submission was that this statement “appears to highlight that an employment relationship was being entered into”, and that since that fundamentally differed from the position of a selfemployed advocate, this was the strongest evidence, taken together with all the other circumstances founded upon, that an employment relationship was established and existed between the claimant, the Inquiry panel and the Minister. 70.It is not possible to sustain this submission. The claimant appears to rely upon a statement which says that no offer or contract of employment was constituted by the appointment of counsel to argue that the opposite is true, namely that an employment relationship was being entered into. In my judgment, this is factually incorrect, on the information available. The claimant was advised, as were the Inquiry, that being appointed as counsel to the SCAI did not constitute a contract of employment, or employment relationship, and reliance upon that statement cannot support his argument that he was in an employment relationship. Further, he appears to suggest that the employment relationship, if there is one, exists between 3 parties, namely the claimant, the SCAI and the Minister. This is, again, a submission for which there is no basis in the information available to me. In any event, the claimant’s position in this case is that he is either the holder of a public office or a worker, not an employee. 71.It is my conclusion, therefore, that the claimant was not a holder of a public office in his appointment as Lead Junior Counsel to the SCAI, for the following reasons: The basis of his appointment was clearly set out in the letter by Ms O’Brien appointing him as counsel to the Inquiry, and accordingly he was appointed by Ms O’Brien as the Chair of the Inquiry. There is nothing in the letter by Ms Constance to allow for an interpretation that she or anyone else from the executive had recommended, or approved, the appointment of the claimant as counsel to the Inquiry. The approval which was granted in the section 39 Determination represented a grant to the Inquiry Chair of approval to meet the expenses of counsel and others involved in the Inquiry. I accept that this grant was given regardless of the identity of counsel to the Inquiry, notwithstanding that it was noted – and no more than noted – that the claimant himself was to be appointed to be counsel. The terms of section 50(2)(b) of the 2010 Act, upon which the claimant seeks to rely, have not been met in the circumstances of this case; his appointment was not made on the recommendation of, or subject to the approval of, the executive. He was appointed by the Chair of the SCAI, who then notified the executive of her intention to do so, and the executive noted that intention but made no comment on it. I accept that the claimant’s appointment required him to act as counsel to the Inquiry, carrying out the role associated with that of an advocate acting upon instructions to a client, namely providing legal advice to the Inquiry panel and team in relation to any matter connected with the Inquiry, appearing at any oral or other hearings, presenting evidence, examining witnesses and making submissions, together with associated duties particular to the role of counsel to a public inquiry. These duties, taken together, relate to the work of an advocate, and provide no persuasive basis for suggesting that the claimant was appointed as the holder of a public office. 72.I turn, then, to the question of whether or not the claimant can be defined as a worker in terms of part 5 of the 2010 Act. 73.The respondents argue that the claimant is not a worker for the purposes of the 2010 Act. Any claim open to the claimant would arise from his position as a practising Advocate, under section 48(6), which are, they submit, premised on the basis that a practising Advocate is not a worker defined by section 83(2)(a) of the 2010 Act, requiring further provision in the statute. 74.By contrast the claimant argues that judicial office holders are workers, and that the considerations in these cases are closely analogous and relevant to the law applicable to office holders under section 50(2)(b) of the 2010 Act. 75.It is important to record, first, that I have already determined, above, that the claimant was not acting as the holder of a public office under section 50(2)(b) of the 2010 Act. 76.On the basis that the claimant was acting as a practising Advocate before the SCAI, he was an independent practitioner providing services with the status, rights and obligations of those holding the office of Advocate. The respondents’ reference to Batchelor is relevant, in the explanation of Lord President Inglis: “An advocate in undertaking the conduct of a cause in this Court enters into no contract with his client, but takes on himself an office in the performance of which he owes a duty, not to his client only, but also to the Court, to the members of his own profession, and to the public. From this it follows that he is not at liberty to decline, except in very special circumstances, to act for any litigant who applies for his advice and aid, and that he is bound in every cause that comes into Court to take the retainer of the party who first applies to him. It follows, also, that he cannot demand or recover by action any remuneration for his services, though in practice he receives honoraria as a return for these services. Another result is, that while the client may get rid of his counsel whenever he pleases, and employ another, it is by no means easy for a counsel to get rid of his client. On the other hand, the nature of the advocate’s office makes it clear that in the performance of his duty he must be entirely independent, and act according to his own discretion and judgment in the conduct of the cause for his client. His legal right is to conduct the cause without any regard to the wishes of his client, so long as his mandate is unrecalled, and what he does bona fide according to the interests of his own judgment will bind his client, and will not expose him to any action for what he has done, even if the client’s interests and thereby prejudiced. These legal powers of counsel are seldom, if ever, exercised to the full extent, because counsel are restrained by considerations of propriety and expediency from doing so. But in such a case as this it is necessary.” 77.The respondents also referred to the Seventh Edition of the Guide to the Professional Conduct of Advocates, in providing that a practising Advocate has no contractual relationship with his client. The Guide states that while a client instructs an Advocate, that does not mean that the client can give “orders”. An Advocate must avoid any impairment of their independence. The instruction of a practising Advocate may be withdrawn by or on behalf of a client at any time without explanation or apology. 78.The respondents’ argument is that the definition of worker in section 83(2)(a) is to be read as coterminous with that in section 230(3) of ERA, citing Lord Wilson in Pimlico Plumbers Ltd stating that the two definitions were differentiated by a distinction without a difference. 79.The distinction is mainly found in the fact that the Equality Act 2010, no exclusion is made in relation to work under a contract in which the other party has the status of client or customer. 80.The respondents’ submission, therefore, is that the ERA exclusion of a selfemployed worker also applies for the purposes of the 2010 Act. 81.The claimant sought to bring into consideration the cases of Gilham and O’Brien, seeking to draw an analogy between his position and that of a Judge. In referring to the UK Supreme Court decision in O’Brien, the claimant argued that there was a distinction, arising from the Framework Agreement on Part-time Work of the European Union, between the category of worker and that of self-employed persons. The court itself then drew a distinction between recorders and self-employed barristers. Most recorders, they said, were self-employed barristers or solicitors, and the UK Supreme Court considered that this underlined the different character of their commitment to the public service when they undertook the office of recorder. 82.It appears to me that the conclusion to which the claimant is pointing cannot be reached on the basis of O’Brien. He seeks to rely upon the argument that there was some form of employment relationship found to exist where a recorder was acting in their judicial, and not their self-employed, capacity. However, the difficulty with that argument is that the claimant is not seeking to rely upon any judicial capacity, and it appears to me to be a significant, and unbridgeable, stretch, to argue that the position of a self-employed Advocate is analogous to that of a judicial office-holder. 83.I have already reached the conclusion that the claimant was not the holder of a public office. My interpretation of his argument is that he is seeking to draw a distinction – though he does not explicitly do so in his submissions – between his actions as a practising Advocate and those as Lead Junior Counsel to the SCAI. 84.The claimant was to be paid at an hourly rate of £140 plus VAT, and fees and expenses were explicitly said, in the letter of 4 September 2015, to be “only payable in respect of work undertaken in relation to the Inquiry”. The claimant was required to carry out the work of Counsel to the SCAI, including providing legal advice, considering documentary and other evidence before the SCAI and appearing at the oral and any other hearings of the SCAI to present evidence, examine witnesses and make submissions as required. 85.In my judgment, the claimant was carrying out the activities of a practising Advocate, an independent self-employed practitioner, in his capacity as Lead Junior Counsel to the SCAI. The title of “Lead Junior Counsel” is one which, plainly read, refers to his status as an Advocate at the Scottish Bar (in the context of a Scottish public inquiry). His actions are plainly those of an Advocate rather than the holder of a public office. 86.I consider that the respondents’ interpretation of the definition of worker in section 83(2)(a) of the 2010 Act is correct, given the terms of the Pimlico Plumbers Ltd judgment. The fact that there is separate provision in respect of Barristers and Advocates in section 48 of the 2010 Act provides additional strength to the conclusion that an Advocate is not regarded as a worker under section 83(2)(a). I do not consider that there is a distinction between his work as a practising Advocate and that as Lead Junior Counsel to the SCAI; indeed, it appears to me fundamental to his role at the SCAI that he was acting in the capacity of a self-employed practising Advocate. 87.I am not, therefore, persuaded that the claimant was acting in the capacity of a worker as Lead Junior Counsel to the SCAI, and I do not find that his position is analogous to that of a judicial office-holder. 88.Accordingly, it is my conclusion that the claimant was not a worker, under section 83(2)(a) of the 2010 Act, in his capacity as Lead Junior Counsel to the SCAI. 89.It is therefore my judgment that the claimant lacks the status and eligibility of either the holder of a public office or a worker upon which he could maintain a claim against the respondents under the 2010 Act; and that the Tribunal lacks jurisdiction to hear his claims against the respondents on this basis. 90.It follows that the claimant’s claims must be dismissed for want of jurisdiction.