Key Facts

An employee lodged an internal grievance against her employer, the Council. The grievance was in the first instance considered by the Council’s own in-house lawyers. Based on the in-house lawyer's advice, the Council wrote to the employee rejecting her grievances. The employee however challenged the independence of the advice and as a result the Council sought advice from an independent employment consultant (who also happened to be a qualified solicitor at the relevant time with a practising certificate). Following that latter advice the Council reiterated its decision and rejected the grievance brought by the employee.

Subsequent to this, the employee brought an Employment Tribunal claim. As part of her claim she contended that she was entitled to see the advice from the independent employment consultant. The Council however argued that the advice given by the independent employment consultant was privileged, either on the ground that it was legal advice obtained from a solicitor (the consultant in this instance happened to be a solicitor) or because it was protected by litigation privilege. 

The EAT had to consider the issue.

The EAT made some interesting comments in this area. There is a distinction in law between 2 forms of legal professional privilege which can be used in proceedings to deny access to documents. First is legal advice privilege. This protects communications between the party and his or her solicitor or barrister. The second is litigation privilege. This protects communications where the dominant purpose of that communication is actual or contemplated litigation (regardless of whether or not the advice is given by a qualified lawyer, as per the above first category). 

The decision of the EAT in summary, was that unless an employer’s advice is coming from a qualified and practising barrister or solicitor, it is not subject to legal advice privilege (the first category above). It can however be subject to litigation privilege. 

On the facts above, the advice given on how to respond to the grievance was held not to be in contemplation of litigation (i.e. in the protection of the second category above). The Council were lucky in this case in that their employment consultant happened to be a solicitor and therefore they could bring forward the defence of legal professional privilege. Had the advisor however been a consultant and not a qualified solicitor or barrister, then the advice given would have to be disclosed via Tribunal proceedings.

Comment

The decision is a reminder to employers who are using unqualified employment law consultants for their advice that they are running higher risks. Tactically it means that employers will be able to ask for disclosure of allegedly confidential communications between unqualified consultants and their clients in relation to such issues as grievance and disciplinary procedures before litigation is contemplated. This is potentially a powerful tool in the armoury of motor industry employers - and indeed this firm when dealing with unqualified consultants on the other side.