Legal professional privilege can be lost if what is being discussed is
Wednesday 26th September | News
by Martin Malone
Most people are familiar with the idea that legal advice is "privileged" from disclosure, i.e. that is remains private between the client and his or her legal advisers. In the United States that has become a hot issue concerning President Trump and those around him, not least his longstanding personal attorney and recent convict, Michael Cohen.
Nearer to home, the issue has been considered by the Employment Appeal Tribunal in the case of X v Y Limited.
"X" was employed by "Y" as a lawyer from January 1990 until his dismissal on 31 January 2017. X suffers from type 2 diabetes and obstructive sleep apnoea. Records showed that there were concerns about X's performance at work from 2011. X complained that measures taken by his employer amounted to disability discrimination and/or failure to make reasonable adjustments. He raised a grievance in March 2016 and an outcome letter was issued in June 2016.
In the meantime Y announced a voluntary redundancy process. Having been unsuccessful in applying for certain roles, X was placed in a "redundancy consultation process".
At his employment tribunal hearing the employment judge accepted that, in May 2016, X overheard a conversation at the Old Bank of England pub in Fleet Street. The conversation was the subject of a claim of legal professional privilege. X said that a group of professionally dressed people including two women in their 30s or 40s came into the pub. One mentioned a disability discrimination complaint by a senior lawyer at Y. She said that there was a good opportunity to manage X out by severance or redundancy because there was a big reorganisation under way.
In his claim X relied on the conversation to interpret an email that he was sent anonymously in late October 2016. The email had been sent by "A", a senior lawyer, to "B", a lawyer who had been assigned to Y. The content of the email was not read out in court at the initial tribunal hearing. X maintained that the email contained advice on how to commit unlawful victimisation by using the redundancy/restructuring programme "as a cloak to dismiss" X. Y maintained that the email was legally professionally privileged.
Y terminated the employment of X, ostensibly by reason of redundancy, by three months' notice ending on 31 January 2017.
In the employment tribunal, Employment Judge Tsamados decided that the email "did not disclose a strong prima facie case of iniquity". Legal professional privilege can be lost if what is being discussed in "iniquitous", i.e. (according to the Employment Appeal Tribunal):
"...beyond conduct which merely amounts to a civil wrong; he has indulged in sharp practice, something of an underhand nature where the circumstances required good faith, something which commercial men would say was a fraud or which the law treats as entirely contrary to public policy."
On appeal Mrs Justice Slade noted that Judge Tsamados did not take into account the conversation in the pub. She concluded that it was right not to do so because it was not authorised by Y and could not therefore assist in determining its position and because there was no contemporaneous note taken.
However, as far as the email was concerned, there were relevant background factors to be taken into account. X had lodged an ET1 alleging disability discrimination and had raised a grievance. X's case was that the meaning of the email was that redundancy could be used as a guise under which to dismiss him for other reasons. Reference was made to the fact that Y had ongoing concerns about X's performance at work. It was appropriate to take into account these external factors.
The email, after setting out the background to the redundancy process, referred to "the individual" and how to deal with him. It was reasonable to assume that references to "the individual" were to X. The key question was whether the advice simply pointed out the risk of claims if X was selected for redundancy or whether it went further and advised that redundancy could be used as a cloak for dismissing X. If X had been dismissed as part of a proper application of a redundancy procedure then there would have been no need to go further and say "there is at least a wider reorganisation and process at play that we could put this in the context of".
Mrs Justice Slade judged that the email was "to be interpreted as recording legal advice that the genuine redundancy exercise could be used as a cloak to dismiss [X] to avoid his continuing complaints and difficulties with his employment which were said by him to be related to his disability".
Accordingly Judge Tsamados had erred in his interpretation of the email. Having considered numerous authorities, she concluded that "In my judgment the advice recorded in the email crosses the high bar of a strong prima facie case of iniquity". Accordingly, X's appeal succeeded on both counts and his claim was restored to include the matters raised in the email.
The case is a handy reminder that, as President Trump has found in a different jurisdiction, it is foolhardy to think that all conversations with a lawyer are automatically privileged. I cannot count the number of conversations I've had with clients in which they have blithely set out their plans, knowing them to be unlawful or with an unlawful objective, only to be told that they should be very careful what they say or write, because it might come back to hurt them. As for the conversation in the pub, I think that the lawyers were very lucky not to have their conversation used. One of the most notorious examples is overheard conversations on trains when lawyers are unfortunately renowned for discussing their cases in thoroughly inappropriate detail. As they said in the second world war, loose talk costs lives. In this context, loose talk about inappropriate behaviour is not protected and could prove to be very costly.