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In the case of The Abbeyfield (Maidenhead) Society (“AMS”) v Hart 2021 UKEAT 00162/21/1908 the Employment Appeal Tribunal (“EAT”) considered whether an email between an employer and its HR consultants was protected by litigation privilege despite indicating a pre-determined decision to dismiss.

Facts

Mr Hart was employed by a Charity, AMS. Mr Hart was summarily dismissed for gross misconduct following an altercation. He brought claims for unfair and wrongful dismissal and various types of discrimination.

Tribunal decision

The Tribunal ordered that AMS disclose all documents which related to the incident.  AMS contended that some of the documents were inadmissible under litigation privilege. The documents in question were communications with its HR consultants regarding how to deal with Mr Hart’s case.

The Tribunal agreed that in principle the documents could be covered by litigation privilege however it held that one document was admissible under the “inequity” principle. This email was from an individual who heard Mr Hart’s appeal and referred to Mr Hart’s “rudeness and gross insubordination has caused major problems… (and) He will not therefore be returning to Nicholas House under any circumstances.”

The inequity principle is an exception to litigation privilege in relation advice given for criminal or fraudulent purposes. The Tribunal found that it would be iniquitous to allow AMS to claim that there had been a fair appeal when the individual had expressed his view that Mr Heart would not be returning before Mr Hart’s appeal had taken place.

EAT decision

AMS appealed. The EAT found that the email did not engage the inequity principle.

The EAT stated that AMS did not seek, and the HR consultant did not advise on, how to act unlawfully. The advice given was in relation to the disciplinary process and the risk of that resulting in litigation.  The indication in the email that they did not want Mr Hart to return to work was the sort of frank instruction that a party may feel able to give in a privileged communication. So was the HR consultant’s response, that she had to “ensure that if my clients wish to proceed against my advice that they do so by making an informed decision”.

The EAT acknowledged that there may be occasions where instructions may leave advisers professionally embarrassed. In these cases, advisers must decide whether it is ethical for them to continue to act for their client, for example if a client informed an adviser they were to embark on a sham appeal process. This was however not the situation regarding the email in the case in question. Nevertheless, the EAT also commented that even an indication of that kind is not the same as a request for advice on how to act illegally and would not necessarily cause litigation privilege to fall away.

Comment It is important for employers to distinguish between litigation privilege and legal advice privilege. Whilst litigation privilege can exist outside of the solicitor and client relationship and can extend to third parties such as HR consultants, as above there is only protection under litigation privilege in relation to communications and documents for the purpose of existing or contemplated litigation. This is much narrower than that of legal advice privilege which covers discussions even where litigation is not in contemplation. Therefore it is likely that the majority of communications and documents between an employer and a HR consultant on general matters outside of the above remit would be disclosable and this is something that employers need to take into consideration.