Nathan May is a solicitor at specialist employment law firm, Collingwood Legal. Nathan considers the importance of legal advice and litigation privilege for employers.
Most employers are aware that advice from their lawyer is protected by “privilege”, but there are often misunderstandings regarding the conditions for a particular document to be protected by privilege and, therefore, not disclosable in any legal action against an employer.
The key components of privilege
There are, broadly, two types of privilege: Legal Advice Privilege (“LAP”) and Litigation Privilege (“LP”). LAP applies to confidential communications exchanged between a lawyer and their client which exists for the dominant purpose of giving or receiving legal advice. LP can apply to confidential material communicated between a lawyer and their client, or between either of them and a third party which is made for the dominant purpose of litigation, which is existing, pending or reasonably contemplated. Importantly, the litigation has to be a real possibility, not a mere possibility or an apprehension that litigation may occur.
As a result, unless there is real possibility of litigation, privilege will not extend to communications within an employer’s organisation, or between the employer and non – lawyer advisory services. By contrast, LAP will apply to lawyer – client communications from the inception of the relationship.
A cautionary tale from the Employment Appeal Tribunal
The extent of privilege protection was made clear in the recent Employment Appeal Tribunal decision in University of Dundee v Chakraborty. The Claimant, Mr Charkraborty, brought claims in the Employment Tribunal and sought the disclosure of a grievance investigation report into allegations he had made against his line manager.
A first draft of the report had been produced at the time the claims were brought so the University sought legal advice prior to any disclosure. The lawyers for the University suggested some amendments and a revised version was disclosed with wording suggesting it had been amended. The Claimant sought disclosure of the original report, and this was resisted by the University on the basis that this would allow him to draw inferences as to the legal advice received and that the original report had acquired retrospective LP and/or LAP protection as a result.
The Employment Appeal Tribunal rejected the University’s arguments. It held that when the original report was drafted it did not have protection from either LP, in that it was not created in contemplation of litigation. Nor was the report protected from LAP, as the original report was not a document evidencing communication between a client and their lawyer. There was no authority for privilege to apply retrospectively, even if this meant inferences could be drawn about the legal advice based on the differences between the two documents. The original report was disclosable.
What should employers take away from this?
The key takeaways from this case are that:
1. The doctrines of LAP and LP apply predominantly to communications between lawyers and their clients. These doctrines protecting confidentiality of communications do not apply to internal management communications or to advice given (or reports prepared by) HR professionals or consultants who are not legally qualified (unless the narrow exception for third party communications for LP is met).
2. The original report could have been protected by the doctrine of LAP if the employer sought legal advice from a specialist solicitor at an earlier stage on matters pertaining to the grievance in terms of the applicable law relevant to the factual investigation and the dispute resolution process.
3. The risks in not instructing a legal adviser at an early stage in the process are that documents and communications which expose vulnerabilities in the employer’s case may be disclosable and increase the risk of losing a tribunal case or emboldening a Claimant to seek a higher settlement sum.
Collingwood Legal is a specialist employment law firm and we provide bespoke training and advice to organisations on all areas of employment law.
