The Court of Appeal (“CoA”) has disagreed with an Employment Appeal Tribunal’s (“EAT”) interpretation of a leaked email. Instead the CoA held that the correspondence between a lawyer and the Respondent, referring to the possibility of dismissing the Claimant by redundancy, was covered by Legal Privilege.
Legal Privilege negates the need to disclose to any third-party, including the other side, confidential communications that:
- pass between a lawyer and their client, or
- exists for the purpose of giving/receiving legal advice.
However, Legal Privilege will not apply where the document indicates any fraudulent or criminal purpose. This was the key point of issue in Curless v Shell International Ltd. The Claimant argued that the leaked email contained advice on how to conceal any purported victimisation by dismissing the Claimant for redundancy. The EAT concluded that, as the email focused on the individual and the fact that he had ongoing claims and grievances citing the alleged discrimination, that the email was “a cloak to dismiss the Claimant”. Read our blog on the EAT’s interpretation of the email here.
However, this decision has since be overturned by the CoA who instead agreed with the original Tribunal’s interpretation of the email and allowed the appeal. In the opinion of the CoA the Respondent was seeking legal advice on how the Claimant might either be offered voluntary severance or dismissed on the ground of redundancy. The CoA held that this was routine advice lawyers gave to their clients “day in, day out”.
The differing interpretations of the same email should be noted by lawyers and employers alike. However, it was the CoA that stressed clients must be able to feel confident that documentation passing between themselves and their legal representatives is protected and any exception to this rule must meet a very high threshold.