Email from employer to HR consultant was privileged as not iniquitous despite suggesting pre-determined decision to dismiss (Abbeyfield (Maidenhead) Society v Hart)

An email from an employer to its HR consultant, sent before an internal disciplinary appeal meeting, indicating a determination to dismiss a suspended employee come what may, was not iniquitous and therefore did not have to be disclosed. It did not fall within the iniquity exception to litigation privilege (which, where it applies, means that communications which would otherwise be privileged must nevertheless be disclosed), because the employer did not seek, and the adviser did not give, advice on how to act unlawfully; rather it was the sort of frank instruction that a party may feel able to give in a privileged communication, according to the EAT.

Abbeyfield (Maidenhead) Society v Hart (EA-2020-001089-JOJ (previously UKEAT/0016/21/JOJ))

 What are the practical implications of this judgment?

In this case the employer submitted, and the original tribunal found, that communications between itself and its HR consultants consisting of requests for advice, and advice, on how to deal with a disciplinary case against an employee and the possibility of dismissal were ‘made in contemplation of litigation’ and therefore were covered by litigation privilege and inadmissable. Although the employee sought to contest that finding before the EAT, there was no permission for that to be argued and the EAT’s reasoning regarding the iniquity exception was based on the assumption that litigation privilege did attach to the emails in question.

Legal advice privilege (LAP) can only apply to communications between a professional legal adviser or in-house lawyer and the client, so there was no possibility that LAP could apply here, as the email communications concerned did not involve such an adviser.

However, litigation privilege protects confidential communications between a client and a legal adviser/third party from disclosure where adversarial proceedings are existing, pending or reasonably contemplated and the communications are for that litigation. In this context, the Supreme Court in Three Rivers (No 6) ruled that ‘adversarial proceedings’ do not include investigative, inquisitorial or fact-finding enquiries or proceedings, which would usually include disciplinary proceedings and grievance proceedings.

The initial finding that the emails under consideration were covered by litigation privilege is therefore somewhat unusual, and we suggest that this decision should accordingly be treated with some caution.

The EAT acknowledged in this case that there may be cases when a client’s instructions may leave an adviser professionally embarrassed, and the adviser then has to decide whether it is ethical for them to continue to act for their client. The EAT’s example of such a situation was if an employer told its adviser that it intended to embark on an appeal process which was a sham. However, in the opinion of the EAT here, there was a distinction to be drawn between a frank admission from a client two months before an internal disciplinary appeal meeting that shows a pre-determination to dismiss a suspended employee (as in this case), which will not necessarily cause privilege to be lost, and a request for advice on how to act illegally, and which would be iniquitous and therefore cause privilege to be lost.

This case is also a reminder to be careful that privilege is not waived: here certain otherwise privileged materials had been referred to in a response to a DSAR. The EAT held that the employment tribunal had not resolved whether this meant privilege had been waived, in particular because the question as to whether the material had been included in the response by mistake had not been properly considered. The issue of whether privilege had been waived was therefore remitted to the tribunal.

Case details

• Court: Employment Appeal Tribunal
• Judge: Bourne J
• Date of judgment: 19 August 2021

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