Redundancy is often seen as an easy way to get rid of difficult employees. Employees made redundant frequently suspect (with or without justification) that there was a nefarious reason behind their selection but there is rarely any direct evidence to support this and the employer’s deliberations are often hidden behind a cloak of ”legal privilege”. Recently however, one employer found that its plans to make a disabled lawyer redundant were not as protected as it thought…

Legal advice privilege applies to any confidential communication between a solicitor or barrister and their client for the purposes of seeking or giving legal advice. Any communication (written or oral) protected by legal advice privilege may not be referred to in legal proceedings. Hence, on the whole, clients can speak freely with their lawyers. The protection will not, however, apply where the communication is used for an iniquitous purpose such as fraud or a criminal offence.

This case involved a disabled lawyer (boringly referred to only as ‘X’) who worked in the legal department of a company (boringly referred to only as ‘Y Ltd’). He had raised a grievance and issued employment tribunal proceedings alleging disability discrimination and a failure to make reasonable adjustments.  A few months later he was made redundant.

So far, so usual. The first thing which made this situation unusual was that an anonymous person sent X a print-out of a lawyer-to-lawyer email which appeared to give advice on how to use the redundancy as a cloak for dismissing him.

The second thing which made this situation unusual was that X claims to have overheard a conversation in the Bank Of England pub on Fleet Street, among unknown lawyers, in which one said that she was dealing with a disability discrimination complaint by a senior lawyer at Y Limited but that there was a good opportunity to manage him out.

X commenced a second set of employment tribunal proceedings in which he referred to both the email and the conversation in the pub. Y Ltd applied to have these paragraphs of his claim struck out because they referred to privileged communications. X argued that privilege did not apply because of the iniquity principle.

The Employment Appeal Tribunal held that, if the email had simply advised along the lines that selecting X for redundancy would involve the risk of a claim, there would be no problem. Mrs Justice Slade, however, felt that it went further than that and recorded advice on how to disguise as redundancy “dismissal of the Claimant for making complaints of disability discrimination and for asking for reasonable adjustments which will continue if there is “ongoing employment”.” She therefore felt that “what is advised is not only an attempted deception of the Claimant but also, if persisted in, deception of an Employment Tribunal”. She therefore held that a prima facie case of iniquity was made out and the Claimant could rely on the email in his claim.

The judgment went on to say “lest there be any doubt about whether legal advice privilege can be claimed in respect of the overheard conversation in the pub … it cannot”.

While the point about the pub is more a lesson to loose-tongued lawyers than their clients, employers need to be alive to the fact that legal advice privilege does not extend to protect unlawful schemes. It is also a reminder of a point I make frequently: never write anything down unless you would be comfortable with it being read out in court.