A leaked internal email and a conversation overheard in a pub are not protected by legal professional privilege because they suggested some form of deception, an employment appeal has found.
In X v Y Ltd, the Honourable Mrs Justice Slade DBE ruled that an employment tribunal had been wrong to strike out a case brought by a lawyer who had worked for his company for 27 years until his dismissal in January 2017.
His unnamed employer had announced a programme of voluntary redundancy in April 2016, less than a year after the lawyer submitted his first claim for disability discrimination and following his failed application for certain roles. The claimant suffers from type 2 diabetes and obstructive sleep apnoea.
The claimant then received a leaked email, which was not fully disclosed by the tribunal, which set out how the company might avoid legal action, warning that it risked an ‘impasse’ of legal proceedings. The author of the email also noted there was ‘at least a wider reorganisation and process at play that we could put this [redundancy] into the context of’.
Less than a month later, the claimant overheard two women in the Old Bank of England pub on Fleet Street discussing a complaint by a senior lawyer at his company and how there was a ‘good opportunity’ to manage him out by severance or redundancy.
The judge said legal privilege would have applied to the email if it had simply stated there was a risk of a claim by the person being made redundant. At the first tribunal, Employment Judge Tsamados said it constituted legal advice aimed at avoiding rather than evading legal action, and this was routine legal work that did not raise the question of iniquity.
Mrs Justice Slade said the email was used as a ‘cloak’ to dismiss the claimant to avoid his continuing complaints and difficulties with his employment. ‘The email does not record any advice on neutral selection criteria for redundancy,’ she added. ‘It concentrates exclusively on how the redundancy can be used to rid the respondent of ongoing allegations of discrimination by the claimant.’
Although treated with ‘significantly’ lesser importance, the judge added that legal advice privilege could not be claimed in respect of the overheard conversation in the pub.
The decision of the employment judge to strike out the claim was set aside.