David was admitted an Advocate in 2008 and has established a successful civil practice with particular experience and expertise in employment law.
In employment cases he represents and advises individual employees, trades unions, small businesses, large employers and public bodies. His cases cover the gamut of employment law, from unfair dismissal, whistle-blowing, discrimination, equal pay, working time and contract law. He has appeared in employment tribunals across the country and has argued numerous appeals in the employment appeal tribunal and in the Inner House of the Court of Session. (For notable cases, see below)
In the related sphere of professional discipline, he has acted for a number of police officers through the Scottish Police Federation at the ET and the PAT.
In addition to his tribunal advocacy, David undertakes work in the civil courts including: judicial review, (including an intervention in the Scottish Government JR following the UK Government’s Order under s.35 of the Scotland Act 1998); local government matters such as licensing and housing; access rights to land; and a variety of employment-related matters such as questions of contract in respect of employment of footballers; professional negligence in the preparation of a references; defamation arising from allegations contained in a workplace grievance; and reasonable adjustments in education.
David is instructed as senior counsel for Homeless Network Scotland, a core participant in the Scottish Covid 2019 Public Inquiry.
Since 2015 David has been an ad hoc Advocate-Depute and has prosecuted serious crime in the High Court of Justiciary. In 2011, he was junior counsel in the prosecuting team, led by the late Derek Ogg QC, for the high-profile murder trial HMA v Malcolm Webster – an extraordinary case that was later dramatised in the ITV serial The Widower.
In education, David has been External Examiner to the Employment Law Module of the University of Aberdeen’s Postgraduate Diploma in Legal Practice. He is a Lead Instructor in advocacy for the Faculty of Advocates Skills Training Courses for Devils. He has given many talks in employment law conferences and bespoke events for firms and clients.
David’s measured approach to advocacy has been recognised in consistent top-rankings (as a junior counsel) in the UK law directories Chambers UK, Legal 500 and Who’s Who Legal Bar Guides over many years. In 2023 his skills were further recognised when he was appointed to the rank and dignity of King’s Counsel in Scotland and he is ranked as a Band 1 silk for employment law in Scotland in the current edition of the Chambers UK Bar Guide.
In his spare time David enjoys playing and watching tennis and playing clarinet in a number of ensembles, and he has many connections to the professional classical music scene in Scotland.
Notable recent cases as senior counsel
Adams v Edinburgh Rape Crisis Centre – for employer – ET claims for discrimination and constructive dismissal concerning an employee’s ‘gender critical’ beliefs
Harper v Red Hot Chilli Pipers – for employee – employment status of asserted regular ‘freelance’ bagpiper with popular folk-rock group Red Hot Chilli Pipers
Boyd & another v Boyd Bros (Fauldhouse) Ltd (ET) – for employer – unfair dismissal concerning alleged irregularities in recording of EBITDA relevant to potential additional remuneration in a share purchase agreement
Philip v Working Partners Ltd & HarperCollins LLC – [2024] EAT 43- worker/employment status of author of packaged children’s fiction
Rachel Corsie & oths v Scottish Football Association – for claimants – ET claims in respect of discrimination in provision of facilities and other matters concerning professional women footballers
Notable cases as junior counsel
Cases at the Inner House:
- BS v Dundee City Council 2014 SC 254 – Unfair Dismissal – ill health capability – correct tests in law http://www.bailii.org/scot/cases/ScotCS/2013/2013CSIH91.html
- Sneddon v Carr Gomm Ltd [2012] IRLR 820 – Unfair Dismissal – misconduct – whether ET erred in holding employer had not conducted sufficient investigation into allegations of misconduct before dismissal.
- Tayside Public Transport v Reilly 2012 SLT 1191; [2012] IRLR 755 – Circumstances in which ET entitled to strike out claim (case appears on the EAT’s List of Familiar Authorities). http://www.bailii.org/scot/cases/ScotCS/2012/2012CSIH46.html
Cases at the EAT:
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- Truslove v Scottish Ambulance Service [2014] ICR 1232 – Working Time – for Claimant – whether time spent on call by paramedics at remote locations was properly to be regarded as working time. http://www.bailii.org/uk/cases/UKEAT/2014/0053_13_0804.html
- Shields Automotive v Langdon & Brolly – TUPE – for Respondent employer – whether ET wrong to consider election of employee representatives for TUPE was invalid – whether award of compensation excessive.
- Edinburgh Home-Link Partnership & oths v City of Edinburgh Council & oths – TUPE – for Respondent – whether ET’s findings that Claimants had not been wholly or mainly assigned to transferring undertaking were perverse. http://www.bailii.org/uk/cases/UKEAT/2012/0061_11_1007.html
- Allma Construction Ltd v Bonner [2011] IRLR 204 – whether binding agreement reached between parties’ representatives to settle ET claim; whether conciliation officer had ‘taken action’ in relation to such an agreement. http://www.bailii.org/uk/cases/UKEAT/2010/0060_09_1205.html
Email: David J P Hay
