A recent case looked at privilege which is a topic that is not often focused upon but which can have incredibly important consequences. So, below are a few pointers on the subject:
- In a nutshell, if information is “privileged”, it means you can keep the information out of the Courts. This can be useful in many situations, for example, where you want to seek advice about a tricky employment situation to understand all the options open to you or where you become aware of a potential claim and you want to understand the risks and prospects of successfully defending it. In such scenarios, you wouldn’t normally want your opponent and/or the Employment Judge to know about such discussions.
- Unless something is covered by privilege, it is fully disclosable in the event that you end up in a litigation process. This is because there is an obligation on the parties to the litigation to disclose everything that is relevant to the issues in the claim, whether they are helpful to their case or not.
- You only get legal advice privilege on your communications with a lawyer. A common misconception is that employment law advice from an HR consultant does not have to be disclosed – it usually does. So, if you seek advice on say, your organisation’s redundancy situation from an employment lawyer, you would not have to disclose this advice if the employee subsequently sued for unfair dismissal. However, if you sought the same advice from an HR consultant, you would probably have to disclose it, along with all your communications with the HR consultant too. So, if you want to have discussions that you don’t want to be seen by a Court or Employment Tribunal, think from the outset about how you can obtain advice that will be privileged.
- If litigation is already in contemplation (for example, say that unfair dismissal claim has been lodged and you are in the process of defending it), communications with third parties, including expert witnesses or HR consultants, about the litigation case are likely to be covered by litigation privilege, meaning they do not have to be disclosed.
- Exercise caution when cascading and discussing legal advice internally. Ensure you limit such communications to a narrow group or you could inadvertently undermine the legal advice privilege meaning that your internal communications about the legal advice become disclosable in any litigation process. Also, do remember that generally all internal communications that are relevant to the claim and which have been made before the litigation was contemplated, whether they be between members of the HR team or the business, will be disclosable too.
- You can’t cherry-pick waiving privilege. The case mentioned in the introduction above was about this very point. If you voluntarily waive privilege on one document, you are likely to lose privilege over everything that is connected to it. The idea behind this rule is to stop people disclosing only the parts that are helpful to them and not the parts that are detrimental to them, therefore giving a false impression of the situation.
The Respondent to a claim disclosed two documents to the Claimant which were legally privileged. There was a third document which was a draft dismissal letter. The letter had been prepared by R’s solicitors. R disclosed the document but redacted the solicitor’s comments and notes. The draft letter was not legally privileged. The redacted parts were protected by legal advice privilege. Had R waived privilege in the redacted parts by disclosing the other two documents?