Professional advice given by lawyers to their clients is strictly confidential and cannot be relied upon as evidence in any legal proceedings – but what if the client is counselled to take a dishonest course? The Court of Appeal confronted that thorny issue in the context of an employment dispute.
The case concerned an in-house lawyer who worked for a multi-national company. He suffered from Type 2 Diabetes and Obstructive Sleep Apnoea, conditions which were said to amount to disabilities. His performance at work had been criticised by his superiors and, following a planned re-organisation of the company’s legal department, he was dismissed, allegedly on grounds of redundancy.
He had by then already launched Employment Tribunal (ET) proceedings, alleging disability discrimination and a failure to make reasonable adjustments. After losing his job, he lodged further complaints of victimisation and unfair dismissal on the basis that his supposed redundancy was a sham and not the real reason for his dismissal. The company denied all his claims.
In support of his case, he sought to rely on the contents of an email which had been anonymously forwarded to him and which had passed between lawyers who were engaged in advising the company in relation to his employment. The ET found that the email was covered by legal professional privilege (LPP) and was thus inadmissible as evidence.
The Employment Appeal Tribunal (EAT), however, subsequently ruled that part of the email could be relied upon. That was on the basis that it recorded legal advice that the genuine redundancy process could be used to cloak the true reasons for the man's dismissal. The EAT found that the company had, on the face of it, been advised to take a deceitful course and that LPP was thus disapplied.
In upholding the company’s challenge to that decision, however, the Court disagreed with the EAT’s interpretation of the email. In warning the company of the potential litigation and other risks that it faced in relation to the man’s employment, the email contained the kind of advice which employment lawyers give, day in day out, to clients who are considering for redundancy employees who they consider to be under-performing. The businessman having failed to establish that the advice given was iniquitous, LPP prevailed and the email could not be used in evidence.
Curless v Shell International Limited. Case Number: A2/2018/2509