Held (allowing the appeal and the cross-appeal)
1. An email which was prima facie covered by litigation privilege did not fall within the ‘iniquity’ exception to privilege although it contained an indication by the employer of a determination to dismiss the employee come what may. The employer did not seek, and the adviser did not give, advice on how to act unlawfully. The indication was the sort of frank instruction that a party may feel able to give in a privileged communication.
2. The Employment Judge omitted to resolve an issue of whether litigation privilege over some further emails had been waived when they were disclosed in response to a Data Subject Access Request. That issue would be remitted.
[2021] UKEAT 00162 – 21 – 1908
Bailii
England and Wales
Updated: 20 September 2021; Ref: scu.667952