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Legal Advice Given to Clients is Strictly Private – But There Are Exceptions

Clients can generally be confident that communications with their lawyers are strictly private and cannot later be used against them in court. However, as an employment case showed, such legal professional privilege does not extend to advice that would achieve iniquitous results.

The case concerned a professional man who suffered from diabetes and obstructive sleep apnoea. After his employer expressed concerns about his performance, he complained that reasonable adjustments had not been made to cater for his disabilities. His employment was eventually terminated, allegedly by reason of redundancy.

He subsequently launched Employment Tribunal (ET) proceedings, claiming unfair dismissal, victimisation and disability discrimination. However, the ET struck out those parts of his case that relied upon the contents of an email that had passed between a member of the employer’s legal department and a solicitor. The email was found to be inadmissible as evidence on the basis that it contained advice that benefited from legal professional privilege.

In overturning that ruling, however, the Employment Appeal Tribunal found that the man had a strongly arguable case that the advice in the email had been given for the purpose of facilitating an iniquity. The email could clearly be interpreted as recording advice that an ongoing redundancy exercise might be used as a convenient cloak under which to dismiss the man. On the face of it, the email advised the employer of an underhand means whereby it could rid itself of a troublesome employee and avoid a potential disability discrimination complaint.

The email did not record any advice as to neutral selection criteria for redundancy and was apparently an attempt to deceive not only the employee but also the ET in anticipated legal proceedings. The ET had erred in its interpretation of the email and the decision to strike out parts of the man’s claim was set aside. The matter was sent back to the ET for a conclusive decision to be reached as to whether the advice given in the email was in fact designed to perpetrate or further an iniquity.