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Employer ordered to disclose privileged material

19 September 2019

In a recent decision, an employer was ordered to disclose comments received from its external solicitor in relation to the dismissal of an employee because it had deliberately disclosed other related privileged documents which were helpful to its case. It could not cherry pick which privileged documents to rely on.

What is privilege and how can it be waived?

Legal professional privilege protects the confidentiality of certain legal communications. It is comprised of two different but related types of privilege: legal advice privilege and litigation privilege.

  • Legal advice privilege: applies to confidential communications between lawyers and their clients for the purpose of giving or receiving legal advice.
  • Litigation privilege: applies to confidential communications between parties, their lawyers and third parties for the purpose of obtaining information or advice in connection with existing or contemplated litigation.

If a communication is privileged then it does not need to be disclosed in litigation. The idea is that clients should be able to consult their lawyers in the knowledge that what they tell their lawyers, and the advice they receive, will not have to be revealed.

Sometimes a party to litigation will choose to reveal a communication which would otherwise be privileged. However, waiving privilege over some communications carries the risk that the party will have to disclose other connected documents. Parties are not allowed to “cherry pick” the privileged material they deploy in litigation, in case this paints an unfair picture.

The key features of cherry picking (sometimes also called collateral waiver) are:

  • using legally privileged material in a selective manner to obtain a forensic advantage, and
  • a risk of unfairness or misunderstanding arising from the court only having a partial view of the privileged material.

Background

Ms Kasongo was dismissed after 11 months’ service. She alleged that the reason for her dismissal was that in the weeks prior to her dismissal she had informed her line manager that she was, or might be, pregnant. The employer refuted that allegation, stating it had dismissed Ms Kasongo for poor performance and other related concerns.

Ms Kasongo brought claims of automatically unfair dismissal and pregnancy discrimination in the Employment Tribunal. As part of disclosure the employer disclosed three documents:

  1. An attendance note taken by its Senior HR Manager of a telephone call she had with the employer’s external solicitor regarding Ms Kasongo’s dismissal.
  2. An email sent by the same HR Manager to the employer’s in-house legal team which explained the reasons for the dismissal and summarised the advice received from the external solicitor.
  3. A draft dismissal letter with the external solicitor’s comments redacted.

Somehow Ms Kasongo was able to read the redacted comments in document 3 and wanted to rely on them as evidence. The Tribunal ruled that the comments were covered by legal advice privilege, and that Ms Kasongo should not be able to rely on them, since they had been inadvertently disclosed and Ms Kasongo should not have been able to read them. Ms Kasongo appealed to the Employment Appeal Tribunal (EAT) and argued that the employer was cherry-picking by disclosing the first two documents but not the third.

The EAT rules that the employer had chosen to waive certain privileged material helpful to its case

The EAT decided that both documents 1 and 2 were covered by legal advice privilege as they contained the solicitor’s advice about the employer’s rights and liabilities towards Ms Kasongo. The EAT said that legal advice privilege is maintained even where:

  • the advice has been communicated by the client to other relevant staff within the organisation and
  • the advice had been paraphrased rather than being communicated in full.

The employer had therefore waived privilege in respect of both documents by choosing to disclose them. Its reason for doing so was seemingly because both documents supported the employer’s position because neither made any reference to Ms Kasongo’s pregnancy.

The employer could not cherry pick

Ms Kasongo alleged that the employer was cherry picking by choosing to disclose the first two documents (that supported its case) and yet redacting its solicitor’s comments in document 3 (which supposedly did not support its case). The employer denied this, stating that as document 3 was not part of the same transaction as documents 1 and 2 it was not cherry picking.

The EAT found for Ms Kasongo. The employer’s distinction between the documents was “wholly artificial”. All three documents concerned the giving of legal advice regarding Ms Kasongo’s dismissal and so were part of the same “transaction”. This was irrespective of the length of time between the giving of the legal advice and the drafting of the letter.

The EAT concluded that the employer had chosen to waive privilege with respect to the first two documents in order to obtain a “forensic advantage”. In maintaining privilege over the redacted comments in document 3 the Tribunal would not have a full understanding of the privileged material and this would be prejudicial to Ms Kasongo. The employer was ordered to disclose the draft letter in full.

Comment

The case is interesting as it is one of the few where the EAT has had to grapple with issues relating to privilege. It is also a strong reminder that parties who make a tactical decision to waive privilege need to be aware of the potential ramifications of doing so. Clients depend on the confidentiality of their communications with their lawyers. By waiving privilege over certain communications for a tactical advantage, parties need to be conscious that they may be also waiving privilege over their other communications which they would not want to be disclosed to their opponent.

Tracey Kasongo v Humanscale – full judgment available here.

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