The EAT has held that legal professional privilege was lost over an email sent by a lawyer to his employer client, because it contained advice on how to disguise an act of unlawful discrimination as a redundancy dismissal.
It is long established that for good public policy reasons a party cannot enjoy the benefit of legal professional privilege where the relevant communication furthers iniquity – in these circumstances, the privilege will be lost and the advice may be referred to in open court.
In this case, the EAT found that the advice which was recorded in the email was not limited to highlighting the claims that may be brought if the employee in question was selected for redundancy. Instead, the email went as far as advising that the redundancy could be used as a cloak for dismissal of an employee who was continuing to make discrimination allegations against his employer. Further, the EAT held that discrimination was sufficiently serious conduct to be considered as iniquity and contrary to public policy, and that what had been advised was an attempt to deceive not just the employee, but also the Tribunal in anticipated legal proceedings arising out of the dismissal. For all of those reasons, the privilege was lost.
Why this matters
This is an important case for employers and their lawyers. It is common for employers to seek legal advice in relation to workplace issues and the termination of a particular employee’s employment via an internal restructure and resulting redundancy exercise. It is important that advice on these issues is given by the lawyer in an appropriate manner so as not to fall foul of the iniquity exception.