When discussing matters relating to employees, many business owners and HR advisers believe such discussions are protected by legal privilege.
WHN employment law expert Michael Shroot refers to a recent case to explain the risk of not taking the correct legal routes to deal with confidential employee-related matters.
The recent Employment Appeal Tribunal (EAT) case of Trentside Manor Care Ltd and Others v Mrs Raphael: [2022] EAT 37 reveals how vulnerable certain confidential advice may become if an employee dispute escalates to a legal matter.
In this case, Citation, a national HR and employment law service that outsources its services to SMEs, was an adviser to the employer in the above employment tribunal. Citation had to disclose confidential advice given to their client during the tribunal proceedings, because it was deemed, as the advice was not provided by a solicitor or qualified lawyer, they did not have legal advice privilege.
Legal advice privilege
When you have communication with a solicitor regarding a legal problem, it is the cornerstone of law that the advice is and will remain confidential. This is commonly called legal advice privilege.
Clients who seek advice from non-solicitors may not have this protection unless it is confidential communication which passes between the client and the adviser and comes into existence for the specific purpose of giving or receiving legal advice.
The Employment Appeal Tribunal (EAT) noted in its judgment in (Paragraph 56) of the judgment:
’The mere fact of taking advice on issues which may be said to have a legal context and could in principle be the subject of employment tribunal proceedings is not enough, nor is the fact that the issues may be complex, or that if the employer gets them wrong and there is successful litigation, significant compensation could be awarded.
Those may all be good reasons for getting advice, but it cannot be said that the employment tribunal was wrong not to treat these features as by themselves pointing to the conclusion that in this case litigation was reasonably in prospect, still less that the prospect of litigation was the dominant purpose of seeking the advice. Wishing to minimise the risk of litigation occurring, or of being unable successfully to defend litigation if it does occur, is not the same as litigation being reasonably in prospect.” (Paragraph 56.)
Citation lost in the appeal court on the basis that the judge felt legal privilege did not apply to the advice they had given. This is because the advice was not sought for the dominant purpose of reasonably contemplated litigation. Furthermore, for advice to attract legal advice privilege, it must come from a qualified lawyer, as opposed to non-qualified advisers, even if they are supervised by a qualified lawyer.
The application of legal advice privilege can be interpreted differently depending on the facts of each case. As well as a warning to employers to be careful who and where they seek advice, it also sends out a message to HR advisers who may provide HR and employment law advice using a team of advisers who are not legally qualified.
Even if the team is headed up by a qualified lawyer, and there is legal supervision, ‘light touch’ supervision could result in privilege not extending to the advice given by an unqualified adviser.
It is likely that in the future there will be an increased demand for disclosure of communication between employers and their HR adviser if related matters reach a tribunal, therefore it is important to ensure you know your position and whether you are protected whether as an employer or HR adviser.
Michael Shroot specialises in commercial dispute resolution. If you operate an HR and employment law service and seek advice regarding legal advice privilege, or you are an employer concerned about the confidentiality of your employee-related discussions, contact Michael Shroot on 0161 761 4611 or email michael.shroot@whnsolicitors.co.uk
