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Can Advice from Employment Consultants be Privileged?

nathan campbellby Nathan Campbell, Cleaver Fulton Rankin

The English Employment Appeal Tribunal (“EAT”) case of Howes v Hinckley & Bosworth Borough Council highlights the difficult legal issues which can arise in an employment context when seeking to withhold disclosure of employment advice from consultants.

Rationale for privilege

The two main types of privilege are legal advice privilege and litigation privilege. The first occurs in relation to a lawyer/client communication for the purposes of giving or receiving legal advice. The second occurs in relation to a document created for the dominant purpose of litigation which is in reasonable prospect. The effect is that documents covered by either or both of these types of privilege cannot be disclosed in an employment tribunal case.

The justification for these types of privilege is clear. If legal advice privilege did not exist, clients would not be free to speak to their lawyers openly for fear of anything they say being heard as evidence in the Tribunal. If documents made for the purpose of litigation were disclosable then proper investigation of issues before the hearing would be discouraged and the possibility of reaching settlement at an early stage of proceedings would be adversely affected.

Facts of the case

The respondent took advice on a statutory employment grievance from an employment consultant. The adviser was a qualified solicitor but it was unclear whether he was giving the advice as a lawyer or as a human resources adviser. It was also unclear whether or not litigation was in reasonable contemplation at this stage.

The respondent successfully argued at first instance that both legal advice and litigation privilege applied. However, the appellant took the case to EAT and claimed that the adviser did not give his advice as a lawyer and that the dominant purpose of the communications was to resolve a grievance not for litigation.

Decision of EAT

Luckily for the respondent, EAT found that the documents were not relevant to the case anyway. The effect of this decision is that they were automatically not disclosable and privilege did not need to be invoked. However, EAT also warned that “the fact that someone is a solicitor with a practice certificate does not mean that any advice given is automatically protected by a legal advice privilege. It must be provided in the context of that professional relationship”.

Commentary

This case shows the danger of seeking legal advice from a source other than a solicitor firm or a full-time in-house lawyer. The respondent was fortunate that the documents were considered to be not relevant.

If the facts of this case were slightly different the outcome could have been prejudicial documents needlessly being disclosed and harming the respondent’s case. The issue of privilege can be a complex one but if you are seeking advice on an employment issue you should always carefully consider if it is legal advice that you are seeking. If so, it is strongly advisable to contact a solicitor so that you do not needlessly weaken your position if the matter ends up before the Tribunal.

For more information please visit www.cfrlaw.co.uk/service/employment-equality-law/