Privileged? Be careful what you put in writing

Out-Law News | 14 Sep 2021 | 8:34 am |

Jon Fisher tells HRNews about the EAT’s decision in Abbeyfield Society v Hart and the scope of litigation privilege
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  • Transcript

    Be careful what put in writing and don’t write anything that you wouldn’t want the employee to read at a later date. That’s the message which is underlined after an EAT decision concerning an email between an employer and its HR consultant indicating a clear and pre-determined decision to dismiss ‘come what may’. In this case, Abbeyfield v Hart, the employer got lucky - they didn’t have to disclose it in the end because it was privileged - but there are lessons to take from the case, nonetheless.

    A reminder. There are two types of legal professional privilege: legal advice privilege and litigation privilege. Legal advice privilege allows clients to discuss their legal position with their lawyers in the knowledge that their communications will remain confidential, even when there is no litigation in prospect. Litigation privilege is more limited in scope and is designed to allow parties to investigate potential disputes without the worry that those investigations could be disclosed to the other side. It can exist outside of the typical client/lawyer relationship and covers any document or communication which has been produced for the purpose of obtaining information or advice in connection with existing or contemplated litigation. However, a client cannot assert litigation privilege in relation to documents which were brought into existence for a criminal or fraudulent purpose - known as the ‘iniquity exception’.

    Turning to the fact of this case briefly. Mr Hart was employed by Abbeyfield and was involved in an altercation with a work colleague and, following a disciplinary hearing, he was dismissed for gross misconduct. His appeal against dismissal was heard by one of Abbeyfield’s senior managers, a Mr Cager, but the appeal was rejected and Hart went on to bring various claims, including unfair dismissal. On disclosure, Abbeyfield submitted that various communications with their HR consultants on how to deal with Hart’s disciplinary case and the possibility of dismissal were protected by litigation privilege. The tribunal agreed that the documents were, in principle, covered by litigation privilege, having been made in contemplation of litigation, however, it concluded that one document - an email from Mr Cager the senior manager - was admissible under the ‘iniquity exception’. In the email, Mr Cager wrote: ‘Mr Hart’s rudeness and gross insubordination has caused major problems to both Donna and Shirly and this cannot be allowed to continue any longer. He will not therefore be returning to Nicholas House under any circumstances.’

    The tribunal’s view of that email was it disclosable on the basis it would be iniquitous to allow Abbeyfield to claim that there was a fair appeal when the appeal officer had clearly expressed the view, two months before dismissal, that Hart’s employment would be terminated ‘come what may’. Abbeyfield appealed to the EAT, successfully. The EAT ruled that the email was not iniquitous because it didn’t seek advice on how to act unlawfully, and the HR consultant did not give such advice. They were merely advising on how to take forward a disciplinary process and on the risk of that process leading to litigation. The indication by the appeal officer that he did not wish Mr Hart to return to work was the sort of frank instruction that a party may feel able to give in a privileged communication. 

    So the employer got lucky in this case, being able to reply on litigation privilege, but we often see emails of this nature at the discovery stage of litigation and it can be a real problem, whether in the context of litigation privilege, as in this case, or the broader legal advice privilege. Jon Fisher has seen this many times and he joined me by video-link from Leeds to discuss the case:

    Jon Fisher: “I think it's another one of those ones where the headline could be misleading here. I think that the key takeaway for employers should be they still need to be very careful what they write down. I don't think they should be relying on this case at all to think that they can communicate in these kinds of terms. Privilege is a very odd concept and one of the odd things now is that if you communicate with an employment lawyer, and send an email for advice, then that would be privileged, but send that same email to an HR consultant or your internal HR team, and even though they are employment law experts, in many cases, and are effectively giving legal advice, that's not privileged and so would be disclosable in a subject access request or in tribunal proceedings. In this case the employer managed to squeeze within a different kind of privilege, which is litigation privilege, which is where they are contemplating legal proceedings. Now where a claim has already been brought that does enable you to communicate freely, internally, about that case, and what your strategy may be for defending it or settling it, but in a case where you're looking at disciplinary proceedings before you've even taken the action which may then trigger the claim, it is going to be quite dubious and I think they probably got quite lucky in this case that that was deemed to be covered by litigation privilege. So, the golden rule for me is if you don't want the claimant to read it don't write it down, and that applies even to communications with lawyers because of the possibility of a subject access request. We’ve had experience of those being disclosed by mistake and you can argue about the privilege and try and get it back but, you know, the rabbit is out of the hat at that point so still really, you know, it’s old fashioned phone calls, Teams calls, they are still the way to go if there are things you want to say that you wouldn't really want the claimant to read at a later date.”

    Joe Glavina: “Can I take you to the common situation in the context of a disciplinary where a manager emails HR and says, bluntly, that come what may the individual has to be dismissed, they have to go. That’s very damaging if it gets out – if the employee finds out – and , as you say, through a data subject access request that could happen. So are you seeing claimant lawyers using that tactic?”

    Jon Fisher: “Yes, absolutely. It happens a lot and it's incredibly frustrating because there doesn't necessarily have to be merit in the claim but they are incredibly expensive and time consuming to deal with. If somebody requests all of the personal data an employer holds about them that is very often thousands of documents and to sort through those documents to check for exceptions such as confidential information relating to other people, legally privileged materials, so you're not disclosing something you shouldn't, that is a very expensive process. We’re constantly looking for technology and ways of expediting that process, making it cheaper, more efficient, but ultimately, as the case illustrates, legal privilege is a finely judged concept which requires a bit of expert judgement as to whether this document is disclosable or not so there always has to be this review of what the pack of documents is, after you've refined it, before you can hand it over and now that we have only got a month that from request to get that out to the claimant it is very time consuming, it is very disruptive, and often it means there's a motivation to try to settle where otherwise you may not wish to, just to avoid that kind of process and that cost. So, we are experiencing it as a tactic and it’s pretty frustrating, but because of the data protection rules there's not an awful lot you can do about it. What you can do is just make sure you're on the front foot in that there is nothing in there that you're embarrassed to disclose. So, you do have the option of saying well we are going to comply with this actually and you're not going to find anything in here which is useful for you. Obviously, if you've put stuff in there that is not privileged and which you don't want the claimant to read then you really are on the back foot. So, it's still really important to at least give yourself the option of complying with the request by making sure you haven't put anything damaging in writing.”

    Joe Glavina: “So as a final point, HR need to get managers to understand they need to be very careful what they write in those emails.”

    Jon Fisher: “Yes, absolutely right. The standard warning when I'm talking to anybody about this who is getting involved in disciplinary case, appeal stage, performance review, a grievance, the golden rule is don't write something down that you wouldn’t want the employee to read at a later date. It's really, really important and that's not just in emails between people, it can be texts, WhatsApps, handwritten notes that they're making, it’s just really, really important to always have that message in mind. File notes from HR that they've made where they've given very detailed extensive advice about the legal risks involved in a certain process and certain decision. You know, it's fantastic, and it's great advice to the manager, but it's disclosable at a later date and that's not going to help your case. Again, we come back to this, and it may seem unfair, but a lawyer writes that and it's privileged, an HR person writes that and it's not, and it’s that key distinction you need to bear in mind. You may be giving legal advice, but unless you're actually a qualified lawyer, you're very unlikely to be covered by this privilege.”

    We have produced a detailed guide on the subject of legal professional privilege which explains both litigation privilege and legal advice privilege. That is available now from the Outlaw website.

    LINKS
    - Link to case report: The Abbeyfield (Maidenhead) Society v Hart