5th December, 2019
Andrew Knorpel looks at shifting workers using TUPE regulations and a recent judgment on the scope of the extended definition of "employee"
The EAT has decided an appeal this month in favour of an employee who argued that she should be able to rely on the employer’s solicitor’s comments which had been redacted on a disclosed document but still remained readable.
In the case of Kasongo v Humanscale UK Ltd, the employer had disclosed a note of a telephone conversation with their solicitor seeking advice on the employee’s termination, the solicitor’s subsequent email summarising the advice and a draft dismissal letter prepared by the solicitor. In doing so, the employer was attempting to show that the employee did not have grounds to claim automatic unfair dismissal and they had therefore waived their right to legal professional privilege over those documents. However, they attempted to redact the solicitor’s comments on the draft wording in the dismissal letter, which included the following statement after the reason for dismissal: “please double check I have this correct factually and that you are not uncomfortable with us saying any of this. The idea is to do enough to show we’ve not dismissed her for any discriminatory reason”.
The employer however did a poor job at redacting the comments and the employee was able to read them. She then sought to rely on them in her claim for automatic unfair dismissal related to pregnancy. The Employment Tribunal found that the ‘redacted’ words had been inadvertently disclosed and it would have been obvious to the employee that she was not intended to read them. The redacted comments were therefore covered by legal professional privilege. However, the EAT disagreed.
The EAT held that waiving the right to privilege over a series of connected documents but withholding parts of those documents was attempting to create a misleading or partial picture to the Tribunal and was impermissible ‘cherry-picking’ of privileged documents. The employer was not able to selectively pick and choose which parts of the privileged advice they would present and which parts they would not.
This case serves as a cautionary tale for employers to take care, both when selectively disclosing legally privileged documents (known as ‘cherry-picking’) and also when redacting certain privileged information.
Once you have waved goodbye to your right to legal professional privilege, there might not be any going back. Employers should therefore think very carefully before waiving privilege over any legal advice they receive in the course of a dispute with an employee and the potential consequences of doing so. Anything that is redacted should be checked that it cannot be read post-redaction. My recommendations include avoiding manual black marker pens (opt for digital redaction instead) and holding the document up to the light to check its transparency. Employers should also be wary of over-redacting documents both in litigation disclosure but also in response to Data Subject Access Requests (DSARs). Employers can be ordered to review their redactions where it is inconsistent or excessive.
The contents of this newsletter are intended as guidance for readers. It can be no substitute for specific advice. Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent changes in the law, or the content of any website referred to in this newsletter. © Mundays LLP
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