Employers may be able to rely on ‘litigation privilege’ even when an email shows a pre-determined decision to dismiss

Many of you will be familiar with the concepts of legal advice privilege and litigation privilege. In a nutshell: legal advice privilege protects the confidentiality of communications between clients and their lawyers, even where there is no prospective litigation; litigation privilege protects the confidentiality of communications between a client and its advisers (it doesn’t have to be a legal adviser) but only where litigation is in contemplation or existence.

In short, the principles enable parties to communicate freely and frankly with their advisers with the comfort of knowing that such communication will remain private, with no requirement to disclose it in legal proceedings or in response to a data subject access request (DSAR).

It’s possible, in some circumstances, for these principles to be displaced by what’s called the “iniquity principle”; this is where advice is sought or given about how to act unlawfully or fraudulently. In such cases, otherwise privileged documents / correspondence would be disclosable in proceedings or in response to a DSAR.

The interplay between these principles is demonstrated by the recent Employment Appeals Tribunal (EAT) decision in Abbeyfield (Maidenhead) Society v Hart.

In that case, the EAT held that an email between an employer and an HR consultant was protected by litigation privilege even though the correspondence indicated the employer’s pre-determined decision to dismiss an employee for misconduct (who had been suspended for his involvement in an altercation at work with another member of staff).

The EAT decided that that the iniquity principle hadn’t come into play: the employer, in the email in question, didn’t seek advice on how to act unlawfully and the HR consultant didn’t give any such advice. It follows that the email in question continued to be protected by litigation privilege and remained inadmissible in the proceedings. The EAT considered that the employer’s indication that the employee would be dismissed come what may was the sort of frank instruction that a party may feel able to give in a privileged communication.

Whilst this case is a great example of the strength of the policy of non-disclosure of communication between a party and its advisers, it’s important to bear in mind that communication / documents between a client and an adviser will only attract litigation privilege if they relate to litigation that is either in existence or contemplation.

Most correspondence between you and your non-legal advisers, for example, your HR adviser, on a day to day basis is unlikely to attract litigation privilege and would, therefore, be disclosable in proceedings or in response to a DSAR.  For this reason, it’s very important to carefully consider the content of your written communications / documents produced and shared with your non-legal advisers.

A Torque top tip: if you wouldn’t feel comfortable having the Employment Tribunal reading a particular communication or document, then don’t send it / write it down!