Disclosure and privilege in employment law

What is legal privilege?

There are two types of privilege in law: legal advice privilege which applies to all communication between a client and lawyer, and litigation privilege that applies when litigation is ongoing, pending or contemplated.

Legal advice privilege is the most common type of privilege and protects against the compulsory disclosure of all types of communications made between clients and their lawyers. This applies to the seeking or giving of legal advice by both external and in-house lawyers within a “relevant legal context” and where legal advice is the dominant purpose of those communications. The subject matter of the advice is irrelevant, so long as it is given or sought within a legal context and the dominant purpose test is satisfied.

Trentside Manor Care Limited & Ors v Raphael [2022] EAT 37

In the case of Trentside Manor Care Limited & Ors v Raphael [2022] EAT 37, the Employment Appeal Tribunal (EAT) assessed the scope of legal privilege.

The claimant made a request for flexible working, which, after discussion, was granted on a trial basis from June 2018. Following a subsequent incident at work, the claimant was suspended and charged with misconduct, leading to her dismissal. It became apparent to the claimant that the misconduct charges were a pretext for dismissing her and that the true reasons related to her earlier flexible working request which, in turn, related to disability.

The claimant applied for disclosure of documents relating to communications between the respondents and their advisers during the period from when she made her flexible working request to when she was dismissed. The respondents claimed that such documents were protected by both litigation privilege and legal advice privilege. The advisers were not a firm of solicitors but had an HR and employment law advice team headed by solicitors, and in which all but one of the managers was legally qualified. However, the individual client advisers were not legally qualified.

The employment tribunal (ET) directed that disclosure should be made to the claimant’s solicitors, but not to the claimant herself, for the purposes of the substantive determination of the privilege issues. The ET also held that litigation privilege did not apply to the advice given before the end of June 2018, and in relation to the same decision, the judge held that legal advice privilege did not apply to the advice given before that date. The respondents appealed.

The EAT allowed one part of the appeal. The order for disclosure of documents to determine the privilege issues was not a proper exercise of the ET’s case management discretion as it was wrong in principle. It would have compromised the very privilege that the respondents were asserting, before the tribunal had determined whether they were entitled to it or not; and had it been complied with, it would be likely to have placed the claimant’s legal advisers in a position of irreconcilable conflict.

On the second issue, the ET correctly concluded, on the material presented to it, that the dominant purpose of seeking advice in the earlier period was not because there was a reasonable prospect of litigation. The ET was also right to conclude that the giving of advice by non-lawyers was not covered by legal advice privilege.

This judgement illustrates there must be a high level of control and supervision from qualified lawyers in order for the protection of legal privilege to apply.

Employers should also note that it may be necessary to disseminate legal advice beyond the initial contact within a company in order for it to be discussed further or for action points to be carried out. In such situations, care must be taken to ensure that the advice is not disseminated to more people than is strictly necessary. The danger of disseminating the advice too widely is that confidentiality, which is an essential element of privilege, may be lost and the privilege is then waived.

Please note that this information is for general guidance only and should not substitute professional legal advice. If you have specific concerns, we recommend consulting one of our legal experts.