Legal privilege: you can’t have it all your own way!

Legal privilege and the disclosure of documents can be tricky to navigate in tribunal proceedings. The case of Kasongo v Humanscale UK Ltd serves as a stark reminder to employers that you can’t have your cake and eat it.

A legally privileged document is a confidential communication between a solicitor and their client, in which the solicitor is providing legal advice.

If the evidence you want to show a tribunal is only included in a privileged document, the temptation then can be to ‘waive privilege’ and allow the tribunal to read the document. This case is a warning that doing this can open the floodgates to the enforced disclosure of other privileged documents, which could be detrimental to the employer’s case.

Unfair dismissal claim

Ms Kasongo was dismissed by Humanscale UK Ltd (Humanscale) on grounds of capability, as a result of ongoing performance issues. Before her dismissal, she notified her employer of the fact that she was pregnant.

She subsequently brought claims against Humanscale for unfair dismissal and pregnancy related discrimination, claiming that her dismissal was related to her having notified Humanscale of her pregnancy.

Humanscale defended these claims by saying that, at the time of considering her performance and taking the decision to dismiss, it did not have knowledge of her pregnancy. It contended that Ms Kasongo was dismissed wholly as a result of performance issues.

In order to defend its position, Humanscale disclosed various documents including an attendance note of a telephone call between Humanscale’s HR Manager and its external solicitor, and an email sent by the HR Manager to Humanscale’s in-house counsel later that day, summarising the legal advice received by phone and asking for comments.

Humanscale also disclosed a draft dismissal letter, which had been written by its external solicitor. This letter was disclosed but with the solicitor’s advisory comments redacted.

Unfortunately, Ms Kasongo could read through the poor redaction, noting that the solicitor’s advice included “…check I have this correct factually and that you are not uncomfortable with us saying any of this. The idea is to do enough to show we’ve not dismissed her for any discriminatory reason”.

The claimant naturally wished to be able to rely on the solicitor’s comments and argued that Humanscale had waived its right to legal privilege protection, by virtue of disclosing the draft letter and other privileged, related documentation – it couldn’t pick and choose when it wished to benefit from legal privilege.

Employment Tribunal decision

Initially, the Employment Tribunal (ET) found in favour of Humanscale, deciding that the redacted sections were covered by legal privilege and that it was clear that Humanscale had not intended to disclose this – the poor redaction was merely an error.

Appeal Court decision

However, the Appeal Court disagreed and found for the claimant. A party cannot “cherry-pick” which documents it wishes to waive privilege over. To permit this would risk a party being able to present a misleading picture by waiving privilege where it helped their case.

It did not matter, as Humanscale tried to argue, that there was a six day break between the initial attendance note/follow up email and the draft dismissal letter – it was part of the same transaction, all of which ultimately related to the claimant’s dismissal.

Top tips for employers

To avoid common legal privilege pitfalls, employers should consider the following:

• Promptly seek professional legal advice from a qualified and practising solicitor or legal advisor as soon as there appears to be an issue – or the potential for one.
• Ensure privileged documents are marked as “confidential and legally privileged.”
• Consider very carefully whether you wish to waive legal privilege on one document – is it actually privileged? What is the reason for wishing to waive legal privilege? Is it essential that this document is disclosed? What are the potential risks?
• When passing on legal advice you’ve received to a colleague (e.g. forwarding advice from an external solicitor to an in-house HR Director) ensure that you either forward on the email containing the legal advice or, if you received the advice by phone, make it clear, when sending your email setting out how you’d been advised, that this is the advice given to you by your legal advisor.
• HR advice (whether given in-house or by an external HR provider) is not going to be legally privileged. When discussing sensitive matters and the best steps for resolving workplace issues, ensure you take legal advice which is likely to be privileged.
• This case arose mostly because Humanscale did not have any other evidence to show that they were not aware of the pregnancy when they took the decision to dismiss Ms Kasongo. Keeping internal admin records of such notifications could have assisted them in demonstrating when they gained this knowledge without needing to rely on correspondence with the lawyers.

For help and advice, please contact Ellis Jessica Walby on [email protected] or on 01242 246 419.