This is often a question that will go through an employer’s head when they are considering who they seek advice from in respect of problem employees. And employers dealing with tricky employees can face a problem in respect of that advice, as their internal communications and some correspondence with external advisors may not be as “confidential” as they think.
Why is this? This is because all of those emails, notes and documents relating to the problem employee may be fully disclosable during legal proceedings, such as a tribunal claim, or when the employee makes a Data Subject Access Request, unless those documents are protected by legal privilege. But, legal privilege will only apply in certain circumstances and is open to challenge by tricky employees.
The basic rule of thumb is that legal privilege applies to confidential communications;
- between a client and the client’s lawyer; and
- that have come into being for the purpose of giving and receiving legal advice about what should be prudently and sensibly done in the relevant legal context.
Simple? Not so it seems.
Advice from HR Consultants
Consider this scenario: You retain a HR Consultant to advise you on a tricky employee relation issue and that HR Consultant assists you in the meetings with the employee, drafts letters to the employee for you to send out and sends you email advice. When the employee makes a Data Subject Access Request they include a request for all documentation, emails and notes that have passed between you and your HR Consultant. Can you claim legal privilege?
On the face of it no. The underlying purpose of legal privilege is to allow free access to a lawyer’s professional skill, expertise, and judgement. This means all members of the legal profession, including solicitors, barristers, in-house lawyers and foreign lawyers can give advice which is legally privileged, provided they are professionally qualified and a member of an approved regulator or professional body (even if they aren’t currently “practicing”). So, unless the HR Consultant is legal trained or is being supervised by a lawyer, then those documents between you and them are not legally privileged and would need to be provided to the employee as part of your response to their request.
Sharing is good, isn’t it?
As an employer, there will often be one or two people who liaise and seek advice from a lawyer on tricky employee situations. But, does legal privilege apply when those persons need to share the legal advice with other senior managers or the Board?
Provided there is some legal or commercial justification for engaging in the sharing, legal privilege should be maintained. You therefore need to give careful thought to why and how far and wide the advice is being shared, to prevent loss of control and the confidentiality that is required to keep the protection of legal privilege.
We want to waive legal privilege
On occasion you may wish to waive legal privilege in respect of the legal advice received to show that the advice you sought took place before a particular point in time, which then disproves the chronology of the employee’s claim. For example, you seek advice regarding the dismissal of an employee with less than two years’ service on the grounds of poor performance three days before the employee informs you that they are pregnant. You proceed with the dismissal on the grounds of performance and use a letter drafted by your lawyer. The employee issues a tribunal claim claiming that they were dismissed because they told you they were pregnant. You therefore disclose the note you made of your call with the lawyer (which was legally privileged) to the employee to show the date you sought the initial advice was before the announced pregnancy. However, that is the only document you disclose. Does that mean the letter drafted by the lawyer (which contained advice within the notes section) is no longer protected by legal privilege?
Yes, according to recent case law, which confirmed (for now) that that waiving legal privilege in relation to one document will also take away the protection for all other advice provided in relation to the same matter.
Please find us a way out, whatever the cost
Finally, loss of legal privilege could come about where a communication or document falls foul of the “iniquity principle.” This is where the communication came into being for the purpose or furthering a criminal activity or fraudulent design.
“Criminal activity” is hopefully easy to understand, but what is “fraudulent design”?
Well, “fraudulent design” can apply, for example, where the advice given sets out how to hide an act of unlawful discrimination or victimisation, perhaps by using a sham redundancy process to dismiss the employee.
In a case on just those facts a lawyer’s email advice was found to have gone further than just giving legal advice, because the advice said a redundancy exercise could be used as a cloak to dismiss an employee who was “causing trouble” by claiming discrimination.
Lawyers are often asked for advice from clients on how to solve issues with employees and often this will require consideration of a variety of solutions. But there is a line that can be crossed. If the advice is given on how to avoid or manage a legal risk, then that is normal and legal privilege should be maintained. If the advice is to hide a clear breach of rights with a sham process, then protection of legal privilege will be lost.