A recent decision of the Employment Appeals Tribunal has confirmed that communications between employers and specialist employment “consultants” or “advisors” do not enjoy the same level of protection under legal privilege as communications with lawyers. As a result, employers may be obliged to provide their employees with copies of the advice they receive from these “consultants” or “advisors” if requested. We examine the facts of the case and highlight key considerations for employers in similar instances.

In a recent Employment Appeals Tribunal (“EAT”) case, the EAT was asked to decide whether communications between employers and specialist employment “consultants” or “advisors” were protected by legal privilege in the same way as communications with lawyers are. The EAT ruled that they were not.

Background

This case involved a complaint of unfair dismissal by Mr Richard Carron against his former employer, Fastcom Broadband (“Fastcom”).

Prior to Mr Carron’s dismissal, Fastcom had engaged Penninsula Business Services (“Penninsula”) to advise them in relation to a grievance raised by Mr Carron. Penninsula describe themselves as HR, health & safety and employment law advisors.

In the course of preparing for the hearing, Mr Carron submitted a request to Fastcom for certain documentation, including legal advice given by Penninsula to Fastcom, under data protection legislation.

At the hearing, Mr Carron asked the EAT to determine whether the communications between Fastcom and Peninsula were subject to privilege or whether they should be disclosed.

Decision

In its decision, the EAT considered two different types of legal privilege:

  1. legal advice privilege, which covers communications between a lawyer and client for the purposes of giving legal advice; and
  2. litigation privilege, which covers communications between a lawyer and client for the purpose of preparing for litigation.

The EAT confirmed that legal advice privilege only applies to communications between a lawyer and client. This means if legal advice is given by a non-lawyer, eg a specialist consultant, advisor or representative body, it is not protected under legal advice privilege and, as such, must be provided to an employee in response to a data access request under the data protection legislation.

The EAT accepted that litigation privilege may apply to communications between an employer and specialist employment consultant or advisor after they are notified of a claim. In other words, if an employer seeks advice from a specialist employment consultant or advisor in anticipation of a claim, that advice will not be covered by privilege and may be required to be disclosed to the employee. In contrast, communications between a lawyer and client in anticipation of a claim would usually be covered by litigation privilege.

Unusually, in this case, the Penninsula representative was a qualified lawyer. However, the representative only became involved in the case after Fastcom was notified of the claim.

Conclusion

This decision is important as it highlights the limited protection which is afforded to advice from specialist employment consultants or advisors who are not legally qualified.

Employers need to be aware that if they engage the services of a specialist employment consultant, advisor or representative body, the advice they receive in relation to a particular employee may have to be disclosed to that employee at a later date, either by way of data access request or as part of any subsequent proceedings. Employers should be mindful of this at all times when communicating with consultants, advisors or representative bodies.