In this weeks case we ask if an email between an employer and its HR consultant was protected by litigation privilege despite indicating a pre-determined decision to dismiss.
Did you know that there are two types of legal professional privilege? These are legal advice privilege and litigation privilege. Legal advice privilege is broader than litigation privilege and allows clients to discuss their legal position with their lawyers in the knowledge that their communications will remain confidential, even when there is no litigation in prospect. Litigation privilege is more limited in scope and is designed to allow parties to investigate potential disputes without the worry that those investigations could be disclosed to the other side. It can exist outside of the typical client/lawyer relationship and covers any document or communication which has been produced for the purpose of obtaining information or advice in connection with existing or contemplated litigation. However, a client cannot assert legal professional privilege in relation to documents which were brought into existence for a criminal or fraudulent purpose – known as the ‘iniquity exception’.
Mr Hart was dismissed following an altercation with another member of staff. He submitted a Subject Access Request (SAR) and was provided with 5 pages of emails relating to his dismissal. The Employment Tribunal then ordered disclosure of other documents. AMS submitted that some pages of a particular file were inadmissible by reason of litigation privilege. The tribunal agreed that the documents were in principle covered by litigation privilege. However, it held that one document was admissible in evidence under the ‘iniquity exception’. This was an email from a senior officer of AMS who also heard Mr Hart’s internal appeal: ‘Mr Hart’s rudeness and gross insubordination has caused major problems to both Donna and Shirley and this cannot be allowed to continue any longer. He will not therefore be returning to Nicholas House under any circumstances.’ The tribunal held that it would be iniquitous to allow AMS to claim that there was a fair appeal when the appeal officer had made up his mind, well before dismissal, that Mr Hart would be dismissed. AMS appealed.
The Employment Appeals Tribunal
The appeal was allowed. The EAT held that this email did not engage the iniquity principle, whether read by itself or in the context of the surrounding email exchange. AMS did not seek advice on how to act unlawfully, and the HR consultant did not give such advice. They were advising on how to take forward a disciplinary process and on the risk of that process leading to litigation. The indication by the appeal officer that he did not wish Mr Hart to return to work was the sort of frank instruction that a party may feel able to give in a privileged communication. So was the consultant’s response, that she had to ‘ensure that if my clients wish to proceed against my advice that they do so by making an informed decision’.
There are cases said the EAT when such instructions may leave advisers professionally embarrassed, and the advisers must decide whether it is ethical for them to continue to act for their client. Such a situation could arise if an employer told its advisers that it intended to embark on an appeal process which was a sham. But that is not what the contentious email here said. And even an indication of that kind is not the same as a request for advice on how to act illegally and would not necessarily cause privilege to fall away.
It is important to note that the protection offered in respect of litigation privilege is only engaged in respect of documents produced for the purpose of obtaining information or advice in connection with existing or contemplated litigation. This means that much of the correspondence between an HR adviser and their client on a daily basis will be disclosable in any claim or subject access request – unlike any correspondence between a lawyer and their client.
It is also important that when a client accidentally discloses privileged documents as part of a subject access request that they make it clear that privilege has not been waived and that the disclosure has been made accidentally and that the opponent should disregard it.