Email Indicating Intention To Dismiss Employee Was Protected By Litigation Privilege – Employment and HR

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Email Indicating Intention To Dismiss Employee Was Protected By Litigation Privilege

The Employment Appeal Tribunal (EAT) has held in Abbeyfield
(Maidenhead) Society v Hart that an email between an employer
and an HR consultant which concerned an employee who was suspended,
and then dismissed, for misconduct, was protected by litigation
privilege.

This was the case even though it suggested a pre-determined
decision to dismiss.

The claimant was employed by AMS, a charity operating care homes
and care services. He was suspended following an altercation
with a gardener at work on 9 December 2016. A disciplinary
hearing took place on 2 March 2017, and he was dismissed for gross
misconduct later that month. His appeal against dismissal was
rejected by C, a senior officer of AMS, and the claimant brought a
number of employment tribunal claims.

AMS disclosed all documents relating to the alleged misconduct,
but submitted that various communications with its HR consultants
on how to deal with the claimant’s disciplinary case and the
possibility of dismissal were inadmissible.  The tribunal
agreed that the documents were covered by litigation privilege, but
concluded that an email which stated that the claimant’s
“rudeness and insubordination has caused major problems”
and he would not be returning to work “under any
circumstances” was admissible under the “iniquity
principle”.  This provides an exception to the right to
assert privilege where advice is sought or given with the purpose
of effecting a crime or fraud. The tribunal held that it would
be iniquitous to allow AMS to claim that there was a fair appeal,
when the appeal officer, C, had expressed the view, two months
before the dismissal, that the claimant’s employment would be
terminated.

On appeal, the EAT did not consider that the email engaged the
iniquity principle. It did not seek advice on how to act
unlawfully; the HR consultant merely advised on the disciplinary
process and the risk of that process leading to
litigation. The EAT held that there may be cases when a
client’s instructions leave an adviser professionally
embarrassed and the adviser has to decide whether it is ethical to
continue to act for the client. This situation could arise if an
employer told its adviser that it intended to embark on an appeal
process which was a sham, but this was not the case here and the
EAT allowed AMS’s appeal.

Take note: Following the decision in Hart
as long as advice is not sought on how to act unlawfully, documents
or emails will attract litigation privilege. The fact that
this applies if the employer has made a statement that the employee
in question will be having their employment terminated before their
appeal hearing has taken place, and therefore before litigation has
been contemplated (legal professional privilege does not apply to
communications between clients and third parties such as
consultants, but only to legally qualified advisers) seems a little
odd. However, the EAT did state that the fact that the email
was inadmissible did not preclude the cross-examination of the
appeal officer under oath about his intentions and his conduct of
the appeal. How easy it would be for the claimant to reveal
the appeal officer’s intentions without recourse to written
evidence is another thing entirely!

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