Employment Law, Legal Privilege exposed – Employment Solicitors in Coventry

Privilege entitles a party to withhold evidence from production to a third party or the court. Such evidence may be either written or oral. The purpose of legal privilege is to enable a client to place unrestricted confidence in their Solicitor.

Types of Privilege

Privilege cannot be claimed unless the evidence in question is confidential.

There are two types of legal privilege:-

• Legal advice privilege
• Litigation privilege

Legal advice privilege protects confidential communications between Solicitors and their clients made for the purpose of seeking or giving legal advice. It can apply whether or not litigation is pending or contemplated.

Litigation privilege protects confidential communications between Solicitors and their clients, or the Solicitor or client and a third party, which come into existence for the dominant purpose of being used in connection with actual or pending litigation. Litigation privilege can only apply when litigation is pending or contemplated. Litigation privilege applies to proceedings in the courts as well as the employment tribunals.

Human Resources Consultants and other non-legal members

While HR consultants have become a popular means of obtaining employment advice in recent years, communications between a company and an HR consultant are not protected by legal advice privilege.

In Carron v Fastcom, the employee Mr Carron brought a claim for unfair dismissal against his former employer Fastcom Broadband Limited.  Prior to Mr Carron’s dismissal, Fastcom took legal advice from HR consultants Peninsula Business Services (Ireland) Limited in relation to a grievance raised by Mr Carron. The EAT determined that Peninsula was primarily a consultant and advisor to the employer which, although involving some advice on legal issues, did not classify Peninsula as a lawyer and thereby enable it to benefit from legal advice privilege.

Conclusion

Given that legal advice privilege does not attach to advice given to employers by non-lawyers such as Peninsula or HR consultants, such advice, whether given in connection with disciplinary action, a dismissal or a grievance is therefore fully disclosable to an employee who submits a data access request to their employer. In these sort of situations, prudent employers often obtain sensitive advice at the outset, long before any claim or litigation is contemplated and it is disconcerting for an employer to know that such advice may find itself in the hands of an aggrieved employee.

For further advice on any employment law related matter or details of our Employment Response Scheme, contact Lianne Payne, Head of Employment and one of our Solicitors based in Coventry.

Do you want to work with one of our employment solicitors in Coventry? You need to visit the Askews Legal website today. If you would like to get in contact with a member of our team, give us a call on 02476 231000. Alternatively, fill in the contact form on our website and someone will get back to you as soon as possible.

Askews Legal LLP – Solicitors Coventry.