When going through a disclosure exercise in the employment tribunal any advice which is provided to a party by their legal advisor is not required to be disclosed due to legal professional privilege.
There is an exception to privilege is for the purpose of facilitating an iniquity This is also known as the crime-fraud exception, a misleading name as the communications need not be criminal or fraudulent. The case of Bank v. Mukhtar Ablyazov and others provided the following summary: ‘If the iniquity puts the advice or conduct outside the scope of such [normal] professional engagement, or renders it an abuse of the relationship which properly falls within the ordinary course of such an engagement, a communication for such purposes cannot attract legal professional privilege.
A recent case of X v Y Ltd was heard by the employment appeal tribunal as X was appealing a decision made to strike out part of X’s case as he relied on an internal email. The email was from Y Ltd’s legal advisor and therefore Y felt it should not be relied upon due to legal professional privilege. The content of the email referred to a wide reorganisation of the company and the fact they could put the issues they were facing with X into the context of the reorganisation i.e use the reorganisation to remove the employee thereby covering up any discrimination.
The employment appeal tribunal upheld X’s appeal of the application to strike out on the basis that Y had tried to deceive both the Claimant and the tribunal.
This case summary/article is intended for information purposes and should not be used or relied upon as legal advice. Just Employment accepts no responsibility for any reliance upon this information.
Author: Samuel Gray Solicitor at Just Employment Ltd