When Legal Advice Privilege is Removed
Legal advice privilege applies to communications between a client and their lawyer, and communications which have come about for the purpose of giving or receiving legal advice. If legal advice privilege applies, then this information cannot be disclosed during the course of legal proceedings and is confidential.
The rule is not absolute though. Legal advice privilege is lost if the purpose of the communication is to further criminal or fraudulent activity. This is referred to as the “iniquity principle” or the “fraud exception” both of which are based on public policy.
A recent Employment Appeal Tribunal (EAT) case considered whether legal advice privilege applied regarding an email from a lawyer advising on a redundancy exercise. The case concerned an employee who suffered from type 2 diabetes and sleep apnoea who was dismissed for redundancy. The employee had prior to his dismissal raised a grievance and previously issued employment tribunal proceedings against his employer alleging that he had been subjected to disability discrimination. A redundancy exercise started and the employee was placed into a redundancy consultation exercise after being unsuccessful in applying for other roles. Following his dismissal, the employee issued further proceedings alleging unfair dismissal, disability discrimination and victimisation.
The employee relied on an email marked “Legally Privileged and Confidential” which the employee argued that the advice being given to the employer was how to use the redundancy exercise to cloak an act of victimisation and dismiss him. The email was sent anonymously to the employee. The employee argued that due to the iniquity principle, legal advice privilege did not apply and therefore it was disclosable. In the first instance, the Employment Judge struck out the parts of the employee’s claims relying on the email saying that it was protected by legal advice privilege. The employee appealed to the EAT.
The EAT needed to decide whether the advice given was to either point out the risk of a claim if the employee was selected for redundancy (which would be fine), or whether it advised that the redundancy could be used as a cloak for dismissal because of the ongoing disability discrimination allegations (which is not fine). The email gave some generic advice but then also went onto focus on the specific employee, and how to include his dismissal into the context of the wider reorganisation. The EAT interpreted the email as using the redundancy exercise as a cloak to dismiss the employee and to avoid the continuing complaints regarding his disability.
As the advice was not neutral regarding the redundancy selection criteria, and focussed on the removal of the specific employee the EAT decided that there was a strong prima facie case of iniquity and the email was not protected by legal advice privilege.