Legal professional privilege and email advice on redundancy


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The Court of Appeal has held in Curless v Shell International Ltd that an email advising an employer in relation to an employee's possible redundancy was protected by legal advice privilege when the employee sought to rely on the email to bring a claim of disability discrimination and victimisation.

The claimant has a disability.  From 2011 there were concerns about his performance, but the claimant claimed that Shell 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 Shell announced a programme of voluntary redundancy, and at the end of October 2016 the claimant was given three months' notice of redundancy dismissal.  Around this time he was sent a print out of an email by an anonymous person from Shell's solicitors advising how to conceal his dismissal behind a wider redundancy programme.  The claimant also relied on a conversation that he overheard in the pub between two people who he believed to have been lawyers, referring to a senior lawyer employed by Shell whose days were numbered because Shell planned to use the context of a redundancy exercise to terminate his employment.  The claimant claimed that he had been victimised by Shell 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 Employment Appeal Tribunal (EAT) allowed the appeal.  The key question to address was whether the legal advice had simply pointed out the risk of claims if the claimant 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...".

The Court of Appeal disagreed, holding that there was no dispute that there had been a significant reorganisation of Shell's legal department, including the loss of some jobs. Shell had sought legal advice on whether, and if so how, the claimant might be either offered voluntary severance or dismissed on the grounds of redundancy in the course of that reorganisation.  This was the sort of conventional advice which employment lawyers gave regularly, and was not advice to act in an underhand or iniquitous way.  The email remained privileged and could not be relied on by the claimant.  As far as the overheard conversation was concerned, the claimant sought to rely on this as an aid to interpreting the disputed email, but there was no evidence that the lawyer in the pub had seen the email.  The advice in the email could not be tainted by a conversation involving gossip from someone else after the event.

Take note:  The Court of Appeal's decision means that employers (and their lawyers!) can breathe a sigh of relief.  When the case was heard by the EAT it stated that although it was safe to advise that a certain course of action runs a risk of being held unlawful, advice that such action can actually be taken would not be privileged.  Now it is clear that such advice will also be privileged, and will not be disclosable in tribunal proceedings.

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