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The Employment Appeal Tribunal (EAT) has held in X v Y Ltd where a client was advised how to conceal an act of discrimination, legal advice privilege did not apply.

X suffers from a disability. From 2011 there were concerns about his performance, but X claimed that Y Ltd had subjected him to disability discrimination. He submitted a claim to the tribunal in 2015 and then raised a grievance complaining of disability discrimination in 2016. The grievance was heard and an outcome letter received. Meanwhile in April 2016 Y Ltd announced a programme of voluntary redundancy, and at the end of October 2016 X was given three months' notice of redundancy dismissal. Around this time X was sent a print out of an email by an anonymous person from Y Ltd's solicitors advising how to conceal X's dismissal behind a wider redundancy programme. X claimed that he had been victimised by Y Ltd for raising complaints of disability discrimination. At a closed preliminary hearing an employment judge found that the email was subject to legal advice privilege and therefore not admissible.

The EAT allowed the appeal. The key question to address was whether the legal advice had simply pointed out the risk of claims if X were selected for redundancy or whether it went further and advised that redundancy could be used as a cloak for dismissing an employee who was troublesome because of his continuing allegations of disability discrimination. The EAT decided that the latter was the case, and that "...a strong prima facie case has been established...not only [of] an attempted deception of the Claimant but also...deception of an Employment Tribunal...".

Take note: It's clear from this decision that it is safe to advise that a certain course of action runs a risk of being held unlawful, but advice that such action can actually be taken will not be privileged and will be disclosable in tribunal proceedings. In view of this, employeres will need to review how they ask for advice and how this advice is then reported internally.

This article is taken from HR Law - September 2018.