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Discrimination Can’t Be Disguised

23rd August 2018

By Sophie Banks, Solicitor in the Employment team

You may be familiar with the concept of legal advice privilege, namely that communications which pass between a client and their lawyer and have come into existence for the purpose of giving or receiving legal advice are confidential and non-disclosable in legal proceedings. However, you may also be aware that legal advice privilege is lost where a communication or document comes into being for the purpose of “furthering a criminal or fraudulent design” (otherwise known as the “iniquity principle").This month saw an important judgment handed down by the EAT in the case of X v Y Ltd which considered whether this iniquity principle removed legal advice privilege from an email sent by a lawyer to a client about the conduct of a redundancy exercise.

To summarise the facts of the case, the Claimant (who suffers from Type 2 Diabetes and Obstructive Sleep Apnoea) was employed as a lawyer from 30 January 1990 until his dismissal on 31 January 2017. From 2011, there were ongoing concerns about the Claimant's performance at work, and he claimed that measures taken by the Respondent relating to this amounted to disability discrimination. He then further asserted these claims both in his first claim to the ET on 14 August 2015 and in a grievance of 2 January 2016.

From April 2016 onwards, the Respondent announced a program of voluntary redundancy and the Claimant’s employment was subsequently terminated by reason of redundancy on 31 January 2017. The Claimant submitted his second claim to the ET on 3 March 2017 alleging further disability discrimination, victimisation and unfair dismissal. In this claim, the Claimant sought to rely on the contents of an email he had been sent anonymously that was marked "Legally Privileged and Confidential." The email was sent on 29 April 2016 by one lawyer to another at the Respondent’s organisation and contained advice on how to commit unlawful victimisation by seeking to use (and ultimately using) the redundancy/restructuring programme as a cloak to dismiss the Claimant.

The ET found that legal advice privilege did apply to the email so its contents could not be relied upon by the Claimant, and the Claimant appealed this decision. The EAT found in favour of the Claimant, stating that there was a strong argument that what was advised was not only an attempt to deceive the Claimant but also, if persisted in, an attempt to deceive an ET in anticipated legal proceedings. The EAT therefore set aside the ET’s decision to strike out paragraphs of the employee's claim relying on the email, on the grounds that it was not covered by legal advice privilege.

This case highlights that the protection of legal advice privilege is not unconditional, and will not apply if the advice given by the lawyer suggests that a particular course of action should be followed to disguise potential discrimination. However, there is nothing wrong with solicitor/client correspondence alluding to the risk of a potential claim if a particular course of action is followed, being the approach ordinarily taken by legal advisers. Provided the appropriate language is used, the benefits of being fully informed of the options available to you and the potential risks of taking a certain route will far outweigh the risks that any such correspondence would be admissible as evidence in any subsequent proceedings.

The contents of this update 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 update. © Mundays LLP 2018.

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