Practice and Procedure
This matter is ongoing in the employment tribunal. The claimant made a request for flexible working, which, after discussion, was granted on a trial basis. Following a subsequent incident at work, she was suspended and charged with misconduct, leading to her dismissal. She claims that the misconduct charges were a pretext for dismissing her and that the true reasons related to her earlier flexible working request which, in turn, related to disability. There are complaints of unfair dismissal, direct disability and age discrimination and disability-related discrimination. The respondents’ case is that this was a genuine dismissal for conduct, which was fair, and unconnected to the claimant’s flexible working claim, disability or age.
The claimant applied for disclosure of documents relating to communications between the respondents and their advisors during the period from when she made her flexible working request to when she was dismissed. The respondents claimed that such documents were protected by both litigation privilege and legal advice privilege. The advisers were not a firm of solicitors, but had an HR and Employment Law advice team, headed by solicitors, and in which all but one of the managers was legally qualified. However, the individual client advisers were not. The tribunal initially ordered that, for the purposes of a hearing to determine that dispute, the respondents should provide copies of the disputed documents to the claimant’s solicitors and counsel, on the basis that they would not show the documents to the claimant herself.
The respondents’ appeal against that order was allowed. The order was not a proper exercise of the tribunal’s case management discretion as it was wrong in principle. It would have compromised the very privilege that the respondents were asserting, before the tribunal had determined whether they were entitled to it or not; and, had it been complied with, it would be likely to have placed the claimant’s legal advisers in a position of irreconcilable conflict.
In fact the respondents did not comply with that order, and the tribunal subsequently directed them to provide the documents to the tribunal itself for the sight only of the judge deciding the issue. That decision was not itself challenged; but the EAT observed that such an order should be made only as a matter of last resort.
The tribunal went on to decide that documents relating to advice sought in the period from when the respondents decided to suspend the claimant were covered by litigation privilege. But documents relating to the earlier period following the flexible working request were covered by neither litigation privilege nor legal advice privilege. The respondents’ appeal in that regard was dismissed. The tribunal was not wrong to conclude, on the material presented to it, that the dominant purpose of seeking advice in the earlier period was not because there was a reasonable prospect of litigation. The tribunal was also not wrong to conclude that the giving of advice by non-lawyers was not covered by legal advice privilege. It was not wrong to conclude, on the evidence presented, and arguments that it heard, that the fact that the advisers were part of a team headed by a solicitor, and in which all but one of the managers were qualified lawyers, and the supervision arrangements in place, did not have the effect in law of extending the privilege to the advice that they gave.
Judges:
His Honour Judge Auerbach
Citations:
[2022] EAT 37
Links:
Jurisdiction:
England and Wales
Employment
Updated: 08 August 2022; Ref: scu.679854