When could you have to disclose your emails from and to your employment solicitor in Court?

This is an important piece of information for Business Owners, decision makers and HR Professionals

This effects legal advice privilege

In 2018 the Employment Appeal Tribunal held that emails from a solicitor containing advice to an employer on how to (what we call in the trade) “fudge” a redundancy to cover a wish to fire an unwanted employee.

Even though the email was marked “legally privileged and confidential” and the language in the content of the email was generalised to apply to all employees, the EAT still held that it was not protected.

Why?

Legal privilege ONLY applies when it complies with the “iniquity principle” this principle basically means that the advice should not be assisting in the employer committing a wrongdoing.

My professional experience is that there are so many MANY circumstances in which either HR consultants or solicitors are asked to make an employee redundant because the employer doesn’t have the appetite to go through a disciplinary process for poor behaviour or performance. Or simply the employee’s face doesn’t fit anymore.

Our best advice to any client how comes to us with that query is to budget for a settlement agreement or spend the time doing the disciplinary process as per the employee’s legal entitlement.

So, Employers and HR Professionals beware, we cannot rely on legal privilege when we are asking for something that is illegal!

The legal community have kept this titbit of information quiet…

Also, this case occurred in a legal firm!

Here is the case transcript