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
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.
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