David called in 2008, having trained and practised as a litigation solicitor with a Scottish local authority. David has established a busy civil practice specialising in employment law, although retains an interest in broader civil work such as restrictive covenants, property law and administrative law. He has appeared in cases in the Sheriff Court, Employment Tribunal (Scotland and England), Employment Appeal Tribunal (in both Scotland and England) and the Outer and Inner Houses of the Court of Session. His advocacy has been described by Mr Justice Langstaff, President of the Employment Appeal Tribunal, as “careful and impressive”.
David J P Hay represents local authorities and private businesses in Employment Tribunals and appeals, as well as representing individuals. He has had particular experience in the complex equal pay litigation facing Scottish local authorities, having been instructed to work alongside senior counsel in respect of two local authorities’ equal pay claims. More recently, David has been instructed in respect of multiple claims for holiday pay lodged against the Police Service of Scotland. He has been instructed in cases at the Employment Tribunal in respect of unfair dismissal, redundancy, TUPE, working time, whistle-blowing, equal pay, and discrimination claims relating to sex, disability, race and religion or belief. He is an experienced appellate advocate, having appeared on many occasions in the Employment Appeal Tribunal and also in the Inner House of the Court of Session without, and on occasion against, senior. Appeal decisions are listed below. He is a founding committee member of the Faculty of Advocates Employment Law Group and has spoken at their CPD events. He has also been invited to speak at the Law Society of Scotland’s Employment Law Group conferences on two occasions. David is appointed to the Panel of Preferred Counsel for the Equalities and Human Rights Commission on the B Panel.
Although David’s principal interest and specialism is in employment law he has experience of other areas of civil work (such as restrictive covenants, property law and administrative law) at both sheriff court and Court of Session level. He has on-going cases in the Commercial Court in respect of implied contractual rights to enhanced redundancy payments. He has been instructed in respect of questions of ownership in an ancient antiquity, and has also conducted proceedings in relation to issues of servitude rights of access. He was involved in detailed preparatory work for the Fingerprint Inquiry Scotland, the inquiry arising out of the internationally renowned Shirley McKie case chaired by Rt Hon Sir Anthony Campbell. In addition, in 2011 David was junior counsel for the Crown in the well publicised and lengthy (over 60 days) murder trial HMA v Malcolm Webster in the High of Court of Justiciary in Glasgow. The case involved managing over 200 Crown witnesses, several lengthy joint minutes and digesting the content of over 1000 documentary productions which included medical records and forensic expert reports on vehicle collision, fire, human pathology and accountancy. It involved the taking of witness evidence by video link to courts in New Zealand, taking evidence on commission and conducting a locus inspection with the jury. David had particular responsibility for the forensic accounting evidence in the case and adduced the evidence of the Crown expert in the trial to establish a financial connection between the various crimes libelled on the indictment. The case has given David great insight into the building and proving of complex, circumstantial cases to a high standard of proof and he brings those skills and that experience to bear in his practice. In 2015 David was appointed an ad hoc Advocate Depute.
David J P Hay has tutored undergraduate students at Edinburgh University in delict and trainee solicitors in the Professional Competence Course run by the Society of Writers to the Signet. As of 2013 David has been appointed a Faculty of Advocates instructor, contributing to the training of Devils (Intrants to the Faculty of Advocates) in the various skills courses that take place during their devilling (pupillage).
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  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;  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:
- Truslove v Scottish Ambulance Service  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
- Kennedy & oths v South Lanarkshire Council – Apparent Bias – Unfair dismissal – whether ET judge should have recused himself on grounds a family member worked for the firm of solicitors representing one of the parties – whether ET conclusions on unfair dismissal claims perverse http://www.bailii.org/uk/cases/UKEAT/2013/0042_12_1511.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
- Ventrac Sheet Metals Ltd v Fairley – Unfair Dismissal – whether ET erred in declining to make a Polkey reduction to compensation on grounds that to do so would be to speculate.
- Allma Construction Ltd v Bonner  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
- City of Edinburgh Council v Dickson – Unfair Dismissal/Disability Discrimination – whether ET decision that dismissal unfair due to employer’s failure to consider employee’s explanation of misconduct in relation to diabetes perverse; whether decision that dismissal both direct and disability related discrimination an error of law. http://www.bailii.org/uk/cases/UKEAT/2009/0038_09_0212.html
- KRD Property Maintenance v O’Donnell – Unfair Dismissal – whether ET decision that claimant unfairly dismissed perverse. http://www.bailii.org/uk/cases/UKEAT/2010/0016_10_0211.html
- Chivas Bros Ltd v Millar – whether employee who had been accepted for ill-health retirement entitled to contractual notice pay. http://www.bailii.org/uk/cases/UKEAT/2011/0032_10_2601.html
Email: David J P Hay