In a case where Fox Williams represented the successful appellant, the Employment Appeal Tribunal has made an important decision which calls into question the reliance lawyers and their clients can place in the confidentiality of legal advice.
The decision is important because it highlights quite how careful all lawyers need to be in their written advice to clients. If that advice is that the client should act unlawfully it might be disclosable in litigation which would clearly have a significant bearing on the outcome of the case.
The general principle is that legal advice is confidential as between a solicitor and their client. An exception is where that advice amounts to iniquity. Demonstrating that iniquity has occurred has consistently proven a very high hurdle requiring strong evidence of iniquitous behaviour such as fraud.
X was employed by Y Ltd as an in house lawyer and brought disability discrimination proceedings. He was subsequently made redundant in a reorganisation following the acquisition by Y Ltd of another business. Prior to being made redundant he overheard a conversation in a pub which referenced that a lawyer employed by Y Limited had brought a disability discrimination claim and that the reorganisation was an opportunity to manage him out. In addition X received from an anonymous source a print out of an email by post. It was marked “Legally Privileged and Confidential” and was sent between an in-house lawyer and a lawyer seconded to work at Y Ltd. X argued that this email contained advice on how to commit unlawful victimisation by seeking to use (and ultimately using) the redundancy/ restructuring programme as a cloak to dismiss him. The full contents of the email cannot be made public pending a possible appeal of the decision.
In this case The Honourable Mrs Justice Slade DBE recognised that, whilst not all discriminatory acts are on a par with fraud, in some cases the discrimination might be “so unconscionable as to bring it into the category of conduct which is entirely contrary to public policy”. In her view the contents of the email fell within that category because they concentrated exclusively on how the redundancy programme could be used to rid Y Limited of ongoing allegations of discrimination by X. She agreed that it recorded advice on how to cloak as dismissal for redundancy the dismissal of the Claimant for making complaints of disability discrimination and for asking for reasonable adjustments which would continue if there was ongoing employment. In her view this was not just a deception of X, but if not admitted would be a deception of the Employment Tribunal in the anticipated legal proceedings.
Employment partner Joanna Chatterton and associate Parissa Torabi represented the appellant, together with Patrick Halliday of 11 KBW.
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