Legal advice privilege and discrimination
Confidential advice between lawyer and client cannot be used in court proceedings unless the document is created for a fraudulent or criminal purpose.
The Court of Appeal has looked at how this principle works in Curless v Shell.
The employee was a lawyer for Shell who had diabetes and sleep apnoea. He brought a discrimination grievance and was later dismissed as part of a reorganisation and redundancy process. He brought tribunal proceedings based in part on a leaked email to Shell from its lawyers which referred to the pros and cons of dismissing 'an individual' as part of the restructure process. The employee said the individual was him. He said the letter wasn’t privileged because it referred to hiding a discriminatory dismissal in a redundancy exercise.
The employment tribunal said the email was privileged. Referring to potential discrimination was not enough to disapply legal privilege. The Employment Appeal Tribunal disagreed. They said the letter referred to cloaking a discriminatory dismissal in redundancy to avoid more discrimination complaints. The Court of Appeal reversed the decision again. The kind of advice the letter contained – how and whether to include someone with an ongoing discrimination claim in a wider redundancy process – was the sort of advice given day in day out by lawyers. It was not part of a dishonest plan and could not be used as evidence in tribunal proceedings.
It is interesting in this case how the courts read the email differently. The EAT saw an attempt to cover up a discriminatory dismissal whereas the Court of Appeal saw normal everyday advice rather than any dishonest plan. This case confirms that the privilege rules will rarely be lifted. This is based on public policy that clients need to be confident about seeking legal advice in tricky circumstances without the threat of it being used against them in future.