A recent case, Abbeyfield (Maidenhead) Society v Hart [2021 I.R.L.R 932, which has been heard in the Employment Appeal Tribunal (EAT) considers legal professional privilege, and highlights the importance of ensuring that internal correspondence does not demonstrate any prejudice, bias or predetermination when dealing with internal disputes such as grievances, disciplinary proceedings or appeals.
Certain types of communications are protected from disclosure or inspection within legal proceedings due to ‘legal professional privilege’. This has two strands known as ‘legal advice privilege’ and ‘litigation privilege’. ‘Legal advice privilege’ covers communications between a party and their lawyer, providing it is confidential and is produced for the purpose of obtaining legal advice or assistance. ‘Litigation privilege’ is confidential communications between a party or their legal adviser and a third party (such as a potential witness or expert) for the dominant purpose of adversarial litigation.
In this case, a senior officer of the employer, who had subsequently heard an employee’s dismissal appeal, emailed a HR consultant (two months before the dismissal) advising that the employee’s ‘rudeness and gross insubordination’ had caused major problems to other staff and that he would therefore not be returning to the workplace ‘under any circumstances’. This email had been disclosed as part of a data subject access request (DSAR) in error. There was a subsequent dispute surrounding whether this email should be disclosable as part of the proceedings, with the EAT eventually finding that it was inadmissible due to privilege.
Except in specific circumstances, privileged communications are inadmissible in legal proceedings. However, that is not the case for internal correspondence between two employees regarding an individual. For example, if an email was sent from the senior officer to the individual conducting the disciplinary hearing, then this would likely be admissible as part of employment tribunal proceedings. This type of correspondence would certainly cast doubt over the procedural fairness of any subsequent dismissal and be potentially damaging to an employer’s prospects of successfully defending a claim in an employment tribunal.
In this technical age, it is very quick and easy to send an email which might vent frustration or express a personal view to a work colleague about an ongoing matter. However, it is important that before doing so, consideration is given to the potential consequences of such an email being disclosed within employment tribunal or court proceedings, and the effect that this might have on an employer’s ability to defend a potential claim should that situation arise.
If you have any queries about legal privilege or dealing with internal proceedings, please do not hesitate to contact a member of the Glaisyers’ employment team.