A recent decision of the Employment Appeals Tribunal (“EAT”) highlights the risks for companies when seeking employment advice from non-lawyers such as HR consultants. A company may have to disclose a copy of such advice following a data access request by an employee or former employee. This could prove detrimental and significantly weaken a company’s position in defending a claim.
Mr. Richard Carron, took an unfair dismissals claim against his former employer, Fastcom Broadband (“Fastcom”). Prior to his dismissal, Fastcom sought advice from a reputable HR consultancy service, Peninsula Business Services (“Peninsula”), to advise them in relation to a grievance raised by Mr. Carron. Some time later, Mr. Carron was subsequently dismissed and he took a claim under the Unfair Dismissals Acts.
In advance of the hearing, Mr. Carron made a data access request to Fastcom for certain documentation, including the advice provided by Peninsula to Fastcom. Fastcom refused to disclose the advice to Mr. Carron on the basis that the communications were subject to legal privilege.
As a preliminary issue, Mr. Carron requested a ruling from the EAT that the communications between Fastcom and Peninsula were not subject to legal privilege and were consequently subject to the Data Protection Acts and could be required to be produced to the EAT in the course of the hearing of the unfair dismissals claim.
In reaching its decision, the EAT first considered the “status” of Fastcom’s representatives. It was accepted that while Peninsula may provide legal advice as part of their service, they were not primarily lawyers. On that basis, the EAT determined that legal advice privilege is privilege over communications made either to or by a lawyer only and does not cover communications between an employer and HR consultants or specialists such as Peninsula.
The EAT also drew a distinction between legal advice privilege and litigation privilege and accepted that communications between Fastcom and Peninsula from the date it had been notified of the complaint of the unfair dismissal were protected.
The decision places employers in quite a conundrum. In theory, the entire employment dispute resolution system facilitates and encourages the involvement of non-lawyers such as HR consultants but in reality employers could automatically weaken their position by obtaining advice from such specialists. Depending on the timing of the advice sought, there is no comfort that the content of the advice obtained is safely beyond the grasp of a disgruntled employee. Often by the time a claim is lodged against a company, there has already been significant communications between a company and its advisors that, while made in confidence, is not protected by legal privilege.