Legal Advice Privilege

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16 September, 2019

Legal advice privilege is a lot like gravity, most people know it exists and are glad it exists, but don't really understand it. If legal advice privilege didn't exist then whilst we wouldn't all float away into the atmosphere, it would make taking effective advice for your organisation much more difficult.

What is legal advice privilege?

Legal advice privilege (LAP) entitles you to withhold communications from an employee or court, whether that be through a Subject Access Request or disclosure in a Tribunal.

It applies when you have confidential communications with a lawyer for the purposes of receiving legal advice. A key element of this is that LAP only applies when you take advice from lawyers, which includes solicitors, legal executives and barristers. It does not apply when you take advice from other individuals or organisations such as Human Resource Consultants.

LAP is vital as it allows your organisation to have frank discussions about what outcome they want from a process without the fear that the employee may see it in the future and the damage that may cause your organisation.

An organisation can choose to waive legal privilege in some cases and disclose legal advice that you have been given, however a recent case has shown the perils of what can happen in this situation.

Kasongo v Humanscale

Humanscale UK Ltd dismissed Ms Kasongo when she had 11 months continuous service. Ms Kasongo alleged that she had informed her employer that she was or might be pregnant shortly before her dismissal and she sought to bring claims for automatically unfair dismissal and discrimination on the ground of pregnancy and maternity. Humanscale denied knowing that Ms Kasongo was pregnant, asserting the reasons for the dismissal were poor performance and attendance issues.

To corroborate its account that the dismissal on poor performance and conduct grounds was already in hand before Ms Kasongo allegedly intimated that she might be pregnant, Humanscale disclosed the following documents:

  • A note of a telephone call between Humanscale's HR Manager and their external solicitor in which she sought advice about the termination process. The note set out the solicitor's advice about the lack of unfair dismissal protection, the possibility of giving pay in lieu of notice and the potential for a discrimination claim based on race.
  • An email sent the same day from the HR Manager to the company's in-house legal counsel, where she summarised the legal advice and stated that the reason for dismissal was "tardiness, attendance and quality of work".

Humanscale also disclosed a draft dismissal letter prepared by its lawyers, although the lawyer's comments were redacted. Mr Kasongo somehow managed to read the redacted parts and sought to rely on them at the hearing. The employment tribunal therefore had to consider whether the lawyer's comments in the letter were subject to LAP and they determined that they were.

However, the EAT took a different view. They determined that by disclosing those emails which would have been subject to LAP they had waived privilege and that it is not possible to "cherry-pick" which part of LAP they were willing to disclose. Therefore, the EAT ordered the redacted elements of the dismissal letter be included.

Conclusion

This case showed the danger of cherry picking which elements of LAP you disclose in any process. Disclosing any LAP communication may waive all elements so be very careful.

In this case the problem was likely caused by the employer failing to produce a disclosable paper trail for their decision-making process. Therefore, even when you actively have solicitors advising you, make sure you have separate communications outside of your solicitor's advice which if necessary can be disclosed to avoid having to disclose discussions which are subject to LAP.

This case is also a reminder of how the pitfalls of not making proper use of LAP can be harmful to a business. As discussed earlier LAP only applies to communications with lawyers and so therefore internal discussions between HR and managers or even with external HR Consultants may be disclosable. If you are having these conversations without a lawyer present then keep in mind the employee may see everything you have said about them.

For more information contact James Barron in our Employment & HR department via email or phone on 0161 918 0017. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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