Ask Auntie – Legal privilege – all is revealed

Dear Auntie

I am an senior manager dealing with a difficult investigation of an employee’s serious misconduct which is expected to lead to his dismissal.

We have engaged our external HR consultant to assist in getting the process right and to help achieve our ultimate aim of dismissing the unruly employee. We have made this clear when instructing the consultant. I suspect that the employee has taken legal advice and I am concerned that he will bring an employment tribunal claim when he is dismissed.

Is there a risk that the correspondence and advice between us and our HR consultant may be revealed in any employment tribunal claim? Or is this privileged?

Yours truly
Mr P Ledge

Dear Mr P Ledge

Even at this early stage, you are right to think about the issue of what might be disclosed in any employment tribunal claim later down the line. The content of many documents and correspondence generated now is likely to be both sensitive and of relevance to any later legal proceedings.

The general rule is that each party must disclose documents which are in their possession or control and which are relevant to the issues in dispute. This may include:

• Notes of interviews conducted as part of the investigation process;
• Early drafts of any investigation outcome and disciplinary letters;
• Internal correspondence regarding the strategy for dealing with the troublesome employee;
• Emails between managers referring to the employee;
• Notes of any meetings between managers;
• Correspondence with your HR consultant, including any reference to the objective of dismissing the employee;
• Notes of any telephone calls with the HR consultant. 

Note: the HR consultant could also be compelled to give witness evidence at an employment tribunal hearing and potentially required to make statements which could be unhelpful.

For a more detailed summary of disclosure obligations, click here.

What information is privileged?

There are two types of legal privilege: 1. Litigation Privilege, and 2. Legal Advice Privilege.

1.  Litigation Privilege

In order for this to apply litigation must be either pending, reasonably contemplated or existing.

Litigation privilege covers confidential correspondence and documents created for the dominant purpose of the litigation. This can cover documents and correspondence between an employer and a third party, such as an external HR consultant, created after a claim has been brought.

Note: litigation privilege will not apply to documents or correspondence generated in the early stages of a disciplinary or investigation. Even if the employee has threatened to sue if they are dismissed, litigation privilege will not apply at such an early stage. This means that your instructions to the HR consultant to help you fire the manager will be disclosable and this could be damaging for your defence, since it suggests the outcome is pre-determined and so calls into question the fairness of the dismissal.

2.  Legal Advice Privilege

This applies to confidential documents or correspondence which have been generated for the purpose of giving or receiving legal advice. However, it only applies between a lawyer and his client.

The client, for the purpose of maintaining privilege, should be limited to a select number of people in any organisation who are authorised to instruct lawyers.

The lawyer must be sufficiently independent from the client in order for privilege to apply, therefore, communications between clients and in-house lawyers do not necessarily attract legal advice privilege.

In relation to external HR consultants, communications between a lawyer and a client’s agent (such as an HR consultant) do not attract legal advice privilege (but litigation privilege may apply once legal proceedings commence) and so you must exercise caution when creating any documentation with the HR consultant.

Practical tips

• Early strategic advice regarding dismissal should involve your lawyers at the outset.
• If fact finding investigations are required, consider whether to involve your lawyers before deciding on next procedural steps.
• Any early draft investigatory or disciplinary reports should be generated for the purpose of obtaining legal advice, marked as such, and sent to your lawyer for this purpose (rather than disseminated internally). This will allow early drafts to attract legal advice privilege and not become disclosable.
• Ensure that managers are regularly reminded that their communications are disclosable and that they should exercise caution when putting anything on email or when making notes.
• Remind managers that they should not communicate anything to your HR consultant, even verbally, that would be detrimental if disclosed in an employment tribunal hearing.
• If in doubt, consult a member of the hrlaw team who will be happy to assist (and whose advice will be privileged)!