The Employment Appeal Tribunal (the EAT) in X v Y Ltd (UKEAT/0261/17/JOJ) has ruled that an email of advice sent from one lawyer to another that contained legal advice on the dismissal of an employee is not subject to legal advice privilege due to the iniquity principle.
Background
The Claimant was employed by Y Ltd as a lawyer. He suffered from Type 2 Diabetes and Obstructive Sleep Apnoea. In August 2015 the Claimant brought a claim in the Employment Tribunal for disability discrimination.
In May 2016 the Claimant overheard a conversation in a pub, which involved two women discussing an employee at Y Ltd who had brought a disability discrimination complaint. The women said that there was a good opportunity to manage him out by severance or redundancy as there was a big reorganisation underway as a result of Y Ltd’s acquisition of another company.
In October 2016 the Claimant was sent a print out of an email anonymously in the post. The email was sent from a senior lawyer to a lawyer assigned to Y Ltd and was marked “Legally Privileged and Confidential”. The full text of the email is not set out in the judgment, but the judgment summaries the Claimant’s interpretation as “…advice on how to commit unlawful victimisation by seeking to use (and ultimately using) the redundancy/restructuring programme as a cloak to dismiss the Claimant. As such…it is not protected because it falls foul of what is called the iniquity principle…”.
Y Ltd terminated the Claimant’s employment allegedly by reason of redundancy by giving three months notice ending on 31 January 2017. The Claimant submitted his second claim to the Employment Tribunal on 3 March 2017 alleging disability discrimination and unfair dismissal.
Employment Judge Tsamados struck out those parts of the Claimant’s claim which relied upon the email on the basis that legal advice privilege was not lost by reason of the application of the iniquity principle.
The Claimant appealed Employment Judge Tsamados’ decision.
Decision of the EAT
Lady Justice Slade found that:
- The email records advice on how to cloak as dismissal for redundancy dismissal of the Claimant for making complaints about disability discrimination and for asking for reasonable adjustments.
- A strong prima facie case has been established that what is advised is not only an attempted deception of the Claimant, but also if persisted in, deception of the Employment Tribunal in likely and anticipated legal proceedings.
- The email did not contain any advice on the neutral selection for redundancy, it concentrated exclusively on how the redundancy can be used to rid Y Ltd of ongoing allegations of discrimination by the Claimant and of underperformance which he stated are related to his disability and failure to make reasonable adjustments.
- It is for a party seeking to rely on material in respect of which legal advice privilege is claimed to establish a strong prima facie case of iniquity. The public policy considerations in maintaining privilege in advice given by a legal adviser to a client is long established. A strong prima facie case has to be established of an iniquity which reaches the high threshold of something of an underhand nature which is entirely contrary to public policy. Each case depends on its own facts.
- The advice recorded in the email crossed the high bar of a strong prima facie case of iniquity, so those parts of the Claimant’s claim should not have been struck out.
- Although of significantly lesser importance, legal advice privilege cannot be claimed in respect of the overheard conversation in the pub.
- The decision of Employment Judge Tsamados to strike out the parts of the Claimant’s claim that relied on the email was set aside.
Commentary
This is an interesting decision and one which is likely to prompt further commentary and/or judicial scrutiny as to what the threshold for iniquity is.
January 2019
Gibson & Co. Solicitors Limited