Counsel to an inquiry did not have worker status or status as a public office holder and a claim could not be taken to the Tribunal.

The claimant was lead junior counsel to the Scottish Child Abuse Inquiry.  He was appointed by the inquiry chair under the Inquiries Act 2005.  This was done by a letter from the Cabinet Secretary for Education and Lifelong Learning and outlined the intention to appoint and the remuneration.  It stated it did not constitute an employment contract and the claimant would submit his fees.

The claimant brought a claim for disability discrimination and victimisation in relation to this role.  It was for the Tribunal under a preliminary hearing to determine the status of the claimant as to whether the Tribunal had jurisdiction to determine the claims.

The Tribunal, at first instance, held that the claimant was not the holder of a public office as set out within the Equality Act 2010, s. 50(2) which required it to be an appointment by a member of the executive. Additionally, they found that he was not a worker under the Employment Rights Act 1996.  The claimant appealed this to the EAT.

On the point of public office, the EAT held that the claimant was not a public officer holder.  This was because the appointment was not made by the executive but rather by the inquiry chair.  This was in line with the Inquiries Rules which set out that he would be ‘counsel to the inquiry’.  In terms of worker status, the EAT held that he did not have such status.  The letter outlining the appointment was not exhaustive and it was akin to counsel being instructed within a case.  All other matters were also consistent with the position that would arise with an instructed advocate/barrister. The claimant had the choice as to whether to accept the appointment and had that discretion and use of independent judgment.  As a result, the Tribunal did not have jurisdiction to hear the claim.

A case for the lawyers out there and whether there is a stage in which employment status arises when an individual is briefed to a particular role.  This was as counsel to an inquiry and it was clearly held by the EAT that it is the same as being instructed in a matter and that it does not confer worker status or status as a public office holder.  The claimant had the discretion and judgment in terms of whether to accept it and that was done under a self-employed basis.

You can read the case in full here.