The Employment Appeal Tribunal (EAT) has held in Abbeyfield (Maidenhead) Society v Hart that an email between an employer and an HR consultant which concerned an employee who was suspended, and then dismissed, for misconduct, was protected by litigation privilege.

This was the case even though it suggested a pre-determined decision to dismiss.

The claimant was employed by AMS, a charity operating care homes and care services. He was suspended following an altercation with a gardener at work on 9 December 2016. A disciplinary hearing took place on 2 March 2017, and he was dismissed for gross misconduct later that month. His appeal against dismissal was rejected by C, a senior officer of AMS, and the claimant brought a number of employment tribunal claims.

AMS disclosed all documents relating to the alleged misconduct, but submitted that various communications with its HR consultants on how to deal with the claimant's disciplinary case and the possibility of dismissal were inadmissible.  The tribunal agreed that the documents were covered by litigation privilege, but concluded that an email which stated that the claimant's "rudeness and insubordination has caused major problems" and he would not be returning to work "under any circumstances" was admissible under the "iniquity principle".  This provides an exception to the right to assert privilege where advice is sought or given with the purpose of effecting a crime or fraud. The tribunal held that it would be iniquitous to allow AMS to claim that there was a fair appeal, when the appeal officer, C, had expressed the view, two months before the dismissal, that the claimant's employment would be terminated.

On appeal, the EAT did not consider that the email engaged the iniquity principle. It did not seek advice on how to act unlawfully; the HR consultant merely advised on the disciplinary process and the risk of that process leading to litigation. The EAT held that there may be cases when a client's instructions leave an adviser professionally embarrassed and the adviser has to decide whether it is ethical to continue to act for the client. This situation could arise if an employer told its adviser that it intended to embark on an appeal process which was a sham, but this was not the case here and the EAT allowed AMS's appeal.

Take note: Following the decision in Hart as long as advice is not sought on how to act unlawfully, documents or emails will attract litigation privilege. The fact that this applies if the employer has made a statement that the employee in question will be having their employment terminated before their appeal hearing has taken place, and therefore before litigation has been contemplated (legal professional privilege does not apply to communications between clients and third parties such as consultants, but only to legally qualified advisers) seems a little odd. However, the EAT did state that the fact that the email was inadmissible did not preclude the cross-examination of the appeal officer under oath about his intentions and his conduct of the appeal. How easy it would be for the claimant to reveal the appeal officer's intentions without recourse to written evidence is another thing entirely!

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