Employers who decide to waive legal privilege over documents that support their case risk inadvertently waiving privilege over other documents which may damage their case.
Where a party to litigation waives privilege over some evidence, it will also be obliged to disclose other privileged evidence that forms part of the same "transaction". Parties cannot cherry pick the evidence on which they choose to waive privilege as this would risk giving only a partial picture to the court. In this case, the EAT considered whether an employer had cherry picked in the context of a discrimination claim.
Ms Kasongo was dismissed by her employer, Humanscale Ltd. She said that she had told Humanscale that she might be pregnant on 30 January 2018 and alleged that the dismissal, some two weeks later, had been on the grounds of her pregnancy and maternity. Humanscale said that it had had no idea that Ms Kasongo was pregnant and that her dismissal was entirely due to poor performance, work attitude, attendance and lateness issues.
Humanscale disclosed two documents which appeared to corroborate its case that dismissal on performance and conduct grounds was in hand before 30 January 2018, when Ms Kasongo claimed she had said that she was pregnant. These documents were:
- Handwritten notes made by the senior HR manager of a telephone call that she had on 25 January 2018 with the company's external solicitors during which she asked for advice on the termination process.
- An email sent by the senior HR manager that day to Humanscale's in-house legal counsel in New York summarising the legal advice and explaining that the company wanted to dismiss Ms Kasongo for "tardiness, attendance and quality of work."
Humanscale also disclosed a draft dismissal letter prepared by the company's lawyers six days later, in which comments by the lawyers were redacted. Ms Kasongo somehow managed to read the redacted words in the letter and, thinking that they supported her case, made an application to the tribunal to allow her to rely on them.
The tribunal held that the email to in-house counsel was not privileged. It did not consider whether the handwritten notes were privileged. It held that the redacted parts of the letter were protected by legal professional privilege and that it would have been obvious to Ms Kasongo that she was not intended to read them. As the other documents were not considered to be privileged, the tribunal did not consider whether there was an issue with cherry picking. Accordingly, it held that Ms Kasongo could not rely on the redacted words.
Ms Kasongo appealed successfully to the EAT.
The EAT agreed that the note of the telephone call and the email were both privileged. In deliberately disclosing these documents, Humanscale had waived privilege. The question was therefore whether Humanscale could maintain privilege in respect of the redacted parts of the letter. The EAT considered that the three documents – the note of the call, the email and the draft letter – were all part of the same transaction, which was the giving of legal advice about Ms Kasongo's dismissal. The unredacted draft letter should therefore be included in the employment tribunal hearing bundle.
WHAT DOES THIS MEAN FOR EMPLOYERS?
This is a reminder that employers must be cautious in deciding whether to waive privilege on any evidence that they believe supports their claim. They should consider carefully whether there is a risk that, in doing so, they are also waiving privilege on any other evidence in the same transaction that might be damaging. Unfortunately, the EAT did not give any guidance over how to assess whether documents were part of the same transaction, but in this case a gap of six days was not enough to create different transactions.
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