Privilege: don't be tempted to cherry pick

Kasongo v Humanscale UK Ltd

An employer had waived privilege in advice about dismissal and so couldn’t cherry pick which parts of the advice it disclosed.

Legal advice privilege entitles an employer to withhold communications from an employee or tribunal/court. It applies when an employer has confidential communications with a lawyer for the purposes of receiving legal advice. It only applies to advice from lawyers, which includes solicitors, chartered legal executives and barristers. It doesn’t apply to advice from other individuals or organisations such as HR consultants.

Legal advice privilege allows an employer to have discussions about what outcome they want from a process without the fear that the employee may see it in the future. An employer can choose to waive legal privilege in some cases and disclose legal advice that it has been given.

A tribunal can order any person to disclose documents to a party to proceedings and allow inspection of such documents. Legal advice privilege protects from inspection confidential communications between a client and a professional legal adviser.

Background

Ms Kasongo was dismissed on 15 February 2018 after 11 months’ service. She claimed automatic unfair dismissal on the basis that she’d been dismissed because she’d told her employer, on 30 January 2018, that she was pregnant. Her employer denied any knowledge of her pregnancy and said she’d been dismissed for performance reasons.

In the disclosure process, her employer disclosed the following material (which would normally have attracted legal privilege and not been disclosable):

  1. a note of a phone call, dated 25 January, written by the HR manager of advice given by their solicitor about Ms Kasongo’s potential dismissal
  2. an email also dated 25 January from the HR manager to its in-house lawyer stating they wanted to terminate Ms Kasongo because of her behaviour issues and asking for the lawyer’s advice, and
  3. a draft dismissal letter, dated 2 February, prepared by the employer’s lawyers from which the following words had been redacted: ‘please double 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’

Ms Kasongo somehow managed to read the redacted words and sought to rely on them at tribunal. The employer objected.

A tribunal held that Ms Kasongo could not rely on the redacted part of the dismissal letter because it was covered by legal privilege. It had been inadvertently disclosed and it should have been obvious to Ms Kasongo that she was not intended to read the redacted words. It also held that the HR manager’s email was not privileged. Therefore, there had been no cherry picking – the employer’s lawyers had not selectively disclosed and waived privilege in some but not all of the documents since only the redacted part of the 2 February letter was privileged. The tribunal made no findings about the HR manager’s note of the legal advice received. Ms Kasongo appealed.

EAT decision

Her appeal was allowed - Ms Kasongo could rely on the redacted words.

The employer conceded that documents 1 and 2 were covered by legal advice privilege. As such, the tribunal’s finding that the email was not privileged, and its failure to comment on the note, were an error of law. Since both were covered by legal privilege – and the employer had chosen to disclose them – it had waived privilege in respect of them.

The EAT noted that parties to a dispute are not allowed to cherry pick, i.e. use legally privileged material in a selective way to obtain an advantage. The employer argued that document 3, the draft dismissal letter, was not part of the same ‘transaction’ as the note and email and therefore the redactions were not caught by the cherry-picking rule. That, held the EAT, was a wholly artificial distinction. They were all part of the same transaction giving advice about Ms Kasongo’s dismissal. The six-day gap between 1 and 2 and 3 did not mean it was a different transaction – they were part of the same continuum and advice on Ms Kasongo’s dismissal and the possible legal implications.

Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2019/0129_19_0909.html

Comment

This case serves as a useful reminder of the dangers of relying on privileged material, even where it may appear helpful to an employer’s case, if there exists related material which is less helpful.