Careless whispers
We consider whether discussions with an HR consultant are risk-free and truly private.
Litigation privilege entitles a party to withhold correspondence from a third party or court. To apply, the correspondence in question must:
- Be between lawyer and client, or between either of them and a third party.
- Be made for the dominant purpose of litigation.
- Relate to litigation which is pending, reasonably contemplated or existing.
- Be confidential.
There are circumstances where litigation privilege will be disapplied, including where the correspondence was made for a criminal or fraudulent purpose. This is known as the iniquity exception.
The Employment Appeal Tribunal (EAT) recently considered these issues in a dismissal context. In this case Mr Hart was suspended following an incident with a gardener on 9 December 2016. A disciplinary hearing took place on 2 March 2017, and Hart was dismissed for gross misconduct shortly thereafter. Hart’s appeal against dismissal was rejected by C, the Company’s appeal officer. Hart then brought multiple employment tribunal (ET) claims.
The employer submitted that correspondence with its HR consultants on Hart’s case was inadmissible under litigation privilege. The ET agreed in part, but found one email was admissible under the iniquity exception. In this email, C stated that Hart would not be returning to work “under any circumstances”. The ET found that it would be iniquitous for the Company to claim that there had been a fair appeal, when prior to dismissal C had clearly stated that Hart would not return to work. The employer appealed to the EAT.
The EAT found that the iniquity exception did not apply. The email did not involve the employer seeking advice on how to act unlawfully, nor did the HR consultant provide such advice. The advice simply related to the disciplinary process, and the risks of litigation. C’s statement that Hart would not return to work was described as “the sort of frank instruction that a party may feel able to give in a privileged communication”. The EAT confirmed that the iniquity exception would only apply if the employer had requested advice on how to act illegally. Even if the employer had told the HR consultant it intended to conduct a sham appeal process, this alone might not disapply litigation privilege.
The EAT’s decision might provide some relief to employers, but it is important to remain cautious. Although the EAT found that the iniquity exception did not apply here, it is not difficult to envision a different finding in future proceedings where a Tribunal does not agree that litigation was reasonably contemplated at the time of the relevant correspondence. If the document was disclosable it could seriously impact the likelihood of success of the employee’s claim and any compensation awarded.
It is important to note that the employer’s correspondence was only protected in the first place because it met the criteria. General conversations with HR consultants or other third parties will not usually be covered by privilege even if they are asking for employment law advice. They will only be protected where litigation is reasonably contemplated and where the main purpose of the communication is that litigation. It must also be made clear that the correspondence is intended to be confidential, so it would be wise for employers to outline at the outset of their conversations with HR consultants or other third parties that the contents are intended to be confidential.
