Legal advice privilege and "cherry picking"
The Employment Appeal Tribunal (EAT) has held in Kasongo v Humanscale UK Ltd that an employer had waived privilege in advice about dismissal and so could not cherry pick which parts of the advice it disclosed.
The claimant was dismissed by the respondent on 15 February when she had 11 months' continuous service. She brought claims of automatically unfair dismissal and discrimination on the ground of pregnancy and maternity, alleging that the respondent knew when it dismissed her that she was pregnant. The respondent denied this. In its defence the respondent disclosed a note (dated 25 January 2018) made by M, its senior HR manager, of a telephone call she had with the company's solicitor in which she sought advice on the termination process. The respondent also disclosed an email sent by M the same day in which she summarised the solicitor's advice and stated that the company wanted to dismiss for "tardiness, attendance and quality of work". The respondent took the view that these communications corroborated its account that the claimant's dismissal on performance and conduct grounds was already in hand well before she intimated that she might be pregnant.
It also disclosed a draft dismissal letter, prepared by its lawyers on 2 February 2018, but with the lawyer's comments redacted. The claimant managed to read the redacted words and sought to rely on them at the hearing. One of the comments which had been redacted asked the respondent to check that the facts in the letter were correct, and that it was not uncomfortable with the wording in the letter as, "The idea is to do enough to show we've not dismissed her for any discriminatory reason". The tribunal had to consider whether the lawyer's comments in the draft letter were privileged.
The tribunal held that the reacted parts of the letter were covered by legal professional privilege, but that M's email was not privileged and the respondent could not "cherry pick" privileged material. The EAT allowed the claimant's appeal, holding that the tribunal was wrong to have found that the email was not legally privileged. In disclosing the email (and the note) the respondent had waived privilege. As a result the EAT held that the respondent could not maintain privilege in respect of the reacted parts of the draft dismissal letter. The redaction in the draft letter clearly presented a partial or misleading picture in light of the 25 January documents. The note, email and draft letter were all part of the same transaction of advising on the claimant's dismissal and possible legal implications. As the respondent had chosen to waive privilege in respect of the note and the email, it was precluded from withholding the lawyer's comments in the draft dismissal letter.
Take note: The decision in Kasongo serves as a reminder of the risk of waiving privilege in some documents and not in others that are clearly connected. To do so will lay an employer open to the charge of "cherry picking" and any privilege will be waived.