Legal advice from a lawyer to clients attracts privilege, so documents containing such advice do not have to be disclosed in litigation, although a client can waive privilege if it wants to rely on a document in evidence. However, the courts are unwilling to allow selective waiver of privilege if that could result in unfairness or misunderstanding. Kasongo v Humanscale UK Ltd is an example of such a case.
Ms Kasongo was dismissed on 15 February 2018, ostensibly because of poor performance and attitude issues. However, she said that she had told her manager in late January that she thought she was pregnant. She brought an employment tribunal claim that her dismissal was connected with pregnancy or maternity and as such automatically unfair and pregnancy/ maternity discrimination.
As part of the employer's defence to the claim it disclosed notes of a conversation between an HR manager and a solicitor in mid-January 2018, an email from the HR manager to the employer's internal lawyer summarising that advice, and a draft dismissal letter prepared by the external solicitor. All three documents were covered by legal advice privilege, but only the dismissal letter was redacted to remove privileged elements. Ms Kasongo was somehow able to read the redacted part of the letter and applied for permission to rely on the letter in its entirety in evidence.
The EAT upheld her request. Both the notes and the email were privileged, but the employer had chosen to waive the privilege and disclose them because they supported its case that pregnancy was not the reason for the dismissal. The redaction in the dismissal letter also related to the reason for dismissal. As the letter formed part of the same "transaction" – the giving of legal advice about the dismissal – as the other privileged documents, the employer had to disclose the lawyer's comments about the dismissal in the dismissal letter. Allowing the employer to remove those comments was the sort of "cherry picking" that ran the risk of unfairness or misunderstanding if the tribunal had a partial view of privileged material. The EAT ordered the employer to include an unredacted copy of the letter in the tribunal bundle.