Employment and Immigration Law Update – Risk of waiving legal privilege

The Employment Appeal Tribunal (EAT) considers whether an employer’s decision to disclose certain evidence meant that it had waived legal privilege over other documents.

Kasongo v Humanscale UK Ltd UKEAT0129/19

Facts

The employee brought claims for automatically unfair dismissal and discrimination on the grounds of pregnancy and maternity, following her dismissal after 11 months of service. Her employer asserted that she had been dismissed for poor performance, attitude, attendance and timekeeping issues.

In its defence, the employer disclosed a note made by its senior HR manager of a conversation with the company’s solicitor. The note referred to the solicitor’s advice relating to the termination, including the lack of unfair dismissal protection for the employee concerned. The note of advice, together with a copy of an email sent to the company’s in-house legal counsel summarising the advice, was disclosed in an attempt to prove that the employer was not aware of the employee’s pregnancy and that her dismissal was for genuine reasons of poor performance. The employer also disclosed a draft dismissal letter, prepared by its lawyers but with the solicitor’s comments redacted. The employee somehow managed to view the redacted comments, and sought to rely on them in support of her claim.

The employment tribunal ruled that the redacted part of the letter was covered by legal professional privilege, meaning that the employee could not rely on them in her claim against the employer. She appealed to the EAT.

EAT decision

The EAT upheld the appeal, allowing the claimant to rely on the redacted letter. Both the note of the conversation and the subsequent email were covered by legal privilege, which had been expressly waived by the employer. The EAT decided that it could not therefore maintain privilege in respect of the draft letter as this would amount to unfair selective privilege, or ‘cherry picking’. The draft letter was all part of the same transaction as the earlier note and email; they were all part of the same continuum of advice in relation to the dismissal. Having chosen to waive privilege in respect of the note and email, the employer was therefore precluded from withholding the full contents of the draft dismissal letter.

Consequences

This decision serves as a reminder that legal professional privilege, which covers communications between a solicitor and their client, is not set in stone and can be (deliberately or accidentally) sacrificed. If an employer decides to disclose certain communications that would otherwise be protected and not have to be disclosed in future proceedings, it runs the risk that other communications in relation to the same ‘transaction’ will also be disclosable. It is also worth noting that there is a risk of internal communications concerning legal advice losing the protection of legal advice privilege, thereby becoming disclosable in future proceedings. Such communications should be limited to those directly involved in the matter to avoid this risk.

This article is from the September 2019 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. Law covered as at September 2019.

The content of this article is for general information only. For further information please contact Liz Stevens or another member of Birketts’ Employment Law Team.