Legal Advice Privilege Disapplied When Advising How To ‘Cloak’ Discrimination

In the case of X v Y Ltd, the Employment Appeal Tribunal (EAT) held that an email from a lawyer was not covered by legal advice privilege because there was a strong case to suggest that it advised how to mask an employee’s dismissal as a redundancy to avoid the employee making further complaints of disability discrimination and requesting reasonable adjustments.

Legal advice privilege applies to confidential communications between a client and the client’s lawyer which exist for the purpose of giving or receiving legal advice. However, legal advice privilege will be lost where a communication or document has the purpose of furthering a criminal or fraudulent design. This is known as the ‘iniquity principle’.

The Claimant was a lawyer himself who suffered from type 2 diabetes and obstructive sleep apnoea. He sought to rely on a copy of an email which was leaked to him anonymously, marked “Legally Privileged and Confidential” sent by A, a senior lawyer, to B, a lawyer assigned to the Respondent. The Claimant argued that the email gave advice to the Respondent on how to commit an act of unlawful victimisation. He claimed that he could rely on the email because there was a strong case of iniquity.

At a closed preliminary hearing, an Employment Judge held that the Claimant could not rely on the email as it was subject to legal advice privilege. The Claimant appealed this decision to the EAT, where it was held that there was a strong prima facie case of iniquity.

The EAT stated that if the advice in the email had gone no further than “you may select the Claimant, an employee with a disability, for redundancy but you run the risk of a claim by him” then the email would not have reached the high threshold required to disapply legal advice privilege. However, the email contained legal advice that instead focussed exclusively on how the redundancy programme could be used to get rid of the Claimant and in particular, his ongoing allegations of discrimination.  In these circumstances, the threshold had been reached.

The EAT held that the email was not only an attempted deception of the Claimant, but also, if persisted in, a deception of an Employment Tribunal in likely and anticipated legal proceedings.

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