UK: Privilege: A Reminder Of The Dangers Of Cherry Picking

Last Updated: 19 September 2019
Article by Anna Pertoldi, Maura McIntosh and Jan O'Neill

The Employment Appeal Tribunal (EAT) has held that an employer waived privilege in redacted parts of a draft dismissal letter setting out its lawyer's comments, as a result of the employer's decision to rely on other privileged material relating to the claimant's dismissal: Kasongo v Humanscale UK Ltd [2019] UKEAT 0129_19_0909.

It is well established that, where a party to proceedings deploys privileged material to support its case, the "cherry picking" rule (also known as the principle of collateral waiver) means that the waiver may extend more broadly than intended. A court or tribunal may require the relevant party to disclose further privileged material, which relates to the same issue or transaction, to avoid giving an unfair or misleading impression based on the material disclosed. In the present case, the EAT rejected the employer's submission that the redacted comments represented a separate "transaction" from the legal advice given six days earlier and therefore were not caught by the cherry picking rule. They were all part of the same transaction, which was advising the employer on the claimant's dismissal.

While the decision is not surprising on its facts, it acts as a reminder of the dangers of relying on privileged material – even where it appears on its face to be helpful to a party's case – if there is related privileged material which is less helpful and may undermine the benefit obtained. Given the risks of opening up further privileged material, and the difficulty of anticipating where the line will be drawn in a given case, a decision to waive privilege should never be taken lightly.


The claimant was dismissed on 15 February 2018 after 11 months' service. She brought claims against her former employer for unfair dismissal and discrimination due to pregnancy, alleging that she informed her manager that she was, or might be, pregnant on 30 January 2018. The employer defended the claim on grounds that it was unaware of the pregnancy and that her dismissal was entirely due to performance issues.

Documents disclosed by the employer in the proceedings included the following, which appeared to corroborate its position that the claimant's dismissal was already in hand before the date she says she told her manager she might be pregnant:

  • a contemporaneous note of a telephone call between the employer's senior HR manager and its external solicitor on 25 January 2018, setting out advice received from the solicitor about the possible termination of the claimant's employment; and
  • an email sent by the HR manager to the employer's in-house counsel later that day, explaining that the employer "would like to terminate an employee asap based on behaviour (issues with tardiness, attendance and quality of work)", summarising the external legal advice received, and asking for views.

The employer also disclosed a draft dismissal letter dated 2 February 2018 which had been prepared by the employer's lawyers, from which certain comments by its lawyers had been redacted. The claimant somehow managed to read the redacted words, which included the lawyer's comment in bold italics, after the explanation for dismissal given in the draft letter: "please double check I have this correct factually and that you are not uncomfortable with us saying any of this. The idea is to do enough to show we've not dismissed her for any discriminatory reason". The claimant sought to rely on these words at the employment tribunal hearing. The employer objected.

The employment tribunal held that the claimant could not rely on the redacted part of the letter as it was covered by legal professional privilege and it would have been obvious to the claimant that the employer had not intended to disclose it. The tribunal also found the HR manager's email to the in-house counsel was not privileged and so there was no "cherry picking". (The tribunal did not make a finding about the HR manager's note of the legal advice received from the external solicitor earlier the same day.) The claimant appealed.


The EAT allowed the appeal and held that the claimant could rely on the redacted words.

In the course of argument before the EAT, the employer "sensibly conceded" that the HR manager's note and subsequent email were covered by legal advice privilege. The EAT said that the tribunal's conclusion that the email was not privileged, and its failure to reach a decision on the note, clearly amounted to an error of law.

Since both the note and email were privileged, and the employer had chosen to disclose them in its list of documents, it had waived privilege in respect of them. Citing Lord Bigham CJ in Paragon Finance plc v Freshfields [1999] 1 WLR 1183 1188C-D, the EAT stated:

"A client expressly waives his legal professional privilege when he elects to disclose communications which the privilege would entitle him not to disclose.... While there is no rule that a party who waives privilege in relation to one communication is taken to waive privilege in relation to all, a party may not waive privilege in such a partial and selective manner that unfairness or misunderstanding may result".

The EAT noted that this practice of selective waiver that is unfair or risks misunderstanding is often referred to as "cherry picking". In the present case, the employer effectively conceded that the waiver led to a risk of a partial or misleading picture, but argued that the draft dismissal letter was not part of the same "transaction" as the note and email, and therefore the redactions were not caught by the cherry picking rule. The employer relied on Dore v Leicestershire County Council [2010] EWHC 34 (Ch) (considered here) and Fulham Leisure Holdings Ltd v Nicholson Graham Jones [2006] EWHC 158, in which Mann J held that waiver only applied to the "transaction" in respect of which disclosure had been made.

The employer submitted that there was a clear distinction and difference between the legal advice given on 25 January and the advice on the wording of the draft dismissal letter of 2 February 2018, and they were separate transactions. The redacted letter was therefore unaffected by the waivers of privilege.

The EAT agreed with the claimant's submission that this was a "wholly artificial distinction". The documents were all part of the same transaction, ie the giving of legal advice about the claimant's dismissal and the possible legal implications. That was not affected by the six day gap between the documents.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions