The Employment Appeal Tribunal (EAT) has held that an employer waived privilege in advice about dismissal and so could not cherry-pick which parts of advice it disclosed.
Ms Kasongo was dismissed by her employer, Humanscale UK Ltd when she had 11 months' continuous service. Ms Kasongo alleged she had informed Humanscale that she was or might be pregnant two weeks before her dismissal. She brought a claim for discrimination on the ground of pregnancy and maternity. Humanscale denied knowing Ms Kasongo was pregnant and claimed her dismissal was due to poor performance, work attitude, attendance and lateness issues.
Humanscale disclosed three documents which in its view supported its case:
- a contemporaneous note of a telephone call between an HR manager and the company's external solicitor;
- an email sent by the HR manager to the company's in-house lawyer setting out the substance of the legal advice; and
- a draft dismissal letter, prepared by the company's external solicitors.
The draft dismissal letter had originally contained comments from the solicitor but the copy disclosed to Ms Kasongo did not show the comments. Ms Kasongo somehow managed to read the redacted words and sought to rely on them at the hearing.
The company objected to the comments being used as evidence on the grounds that they were subject to legal advice privilege. The company was concerned in particular about the following comment on the reasons for dismissal set out in the draft letter:
"please double check I have this correct factually and that you are not uncomfortable with us saying any of this. The idea is to do enough to show we've not dismissed her for any discriminatory reason."
The Employment Tribunal ruled the redactions were covered by legal advice privilege and so Ms Kasongo could not rely on them. Ms Kasongo appealed.
Humanscale accepted that it had waived privilege in respect of documents 1 and 2. However, it argued that the comments on the draft dismissal letter retained their privileged status because they formed a stand-alone piece of advice which should be seen as distinct from the earlier advice provided to HR.
The Employment Appeal Tribunal (EAT) disagreed. The three documents were all part of the same transaction: namely, the giving of legal advice about Ms Kasongo's dismissal and possible legal implications. To allow the company to waive its legal privilege in a selective way (often referred to as 'cherry-picking') could result in unfairness and misunderstanding. The EAT ordered that the unredacted letter be included in the employment tribunal hearing bundle.
Employer's should consider the implications of waiving legal advice privilege carefully - if one privileged document is disclosed others may have to follow, whether they are supportive or not.
The case also illustrates the importance of disclosing documents in a form that does not allow interrogation of any metadata that they might contain.