An email between an HR consultant and an employer suggesting a pre-determined decision to dismiss has been held by the EAT to benefit from litigation privilege and not fall within the “iniquity principle”.
The facts
As a general rule, a party to an Employment Tribunal does not need to disclose communications between itself and its legal advisers (or in some case third parties) if it is covered by legal professional privilege. However, a party cannot assert privilege in relation to documents which were brought into existence for a criminal or fraudulent purpose – known as the “the iniquity exception or principle”. If evidence falls under the iniquity principle, it is therefore admissible in court and Tribunal proceedings, even if it would otherwise benefit from privilege.
Mr Hart was employed by the Abbeyfield (Maidenhead) Society, a charity which operates care homes and services. A disciplinary process was instituted against him following an altercation with a gardener, and he was dismissed for gross misconduct. An internal appeal was unsuccessful.
Mr Hart brought claims against the Abbeyfield for unfair dismissal, wrongful dismissal, discrimination, harassment and victimisation.
The Abbeyfield argued that various communications between it and an external HR consultant on how to deal with Mr Hart’s disciplinary process and the possibility of dismissal should benefit from litigation privilege because they were made in contemplation of litigation, and they should not therefore be admitted in the Tribunal proceedings. One of these documents was an email exchange, pre-dating Mr Hart’s internal appeal, between the manager who had heard the appeal and the HR consultant. In this email, the appeal manager stated that Mr Hart’s “rudeness and gross insubordination has caused major problems” and he would not be returning to work “under any circumstances”. Mr Hart successfully argued in the Employment Tribunal that this document should be admitted under the “iniquity principle”.
The Tribunal considered that it would be iniquitous to allow the Abbeyfield to claim that there was a fair appeal when the appeal officer had clearly expressed his view, two months before Mr Hart’s dismissal, that his employment would be terminated.
The Abbeyfield appealed to the EAT, which overturned the decision. The EAT Judge pointed out that there is a strong policy in favour of non-disclosure of privileged material, because privilege enables parties to communicate frankly with their legal advisers and (in the case of litigation privilege) with other advisers about strengths and weaknesses and the risks of their case. Because of privilege, they do so knowing that their communications will remain private. In this case, the Abbeyfield had not been seeking advice on how to act unlawfully, and the HR consultants did not advise them how to act unlawfully. The consultant was advising on how to take forward a disciplinary process and on the risk of that process leading to litigation. The appeal manager’s indication that he did not wish Mr Hart to return to work was the sort of frank instruction that a party should feel able to give in a privileged communication. The iniquity principle did not therefore apply. The Judge also commented that, even if an employer told an adviser that it intended to embark on an appeal process which is a sham, the iniquity principle would not necessarily apply.
What does this mean for employers?
This decision illustrates that the circumstances in which the iniquity principle will apply will be rare. Employers will be reassured by the EAT’s emphasis on the importance of parties being able to have frank conversations with their lawyers and other advisors when litigation is in contemplation. However, employers still need to take a cautious approach and be very careful what they put in writing. Employers should bear in mind that at some point it may be read by the employee – whether that is because it may be disclosable in Tribunal proceedings or in a subject access request.
The Abbeyfield (Maidenhead) Society v Mr M Hart, EA-2020-001089
