When dealing with sensitive employment issues, it is vital that employers are able to speak freely with their legal advisers without fear that the contents of those communications may be disclosed. In most cases, such communications are protected by legal professional privilege. This takes two forms. First, advice privilege protects confidential communications between a client and his legal adviser made for the purpose of giving or seeking legal advice. Second, litigation privilege, by contrast, is capable of extending beyond advice given by legal advisers, and will embrace communications with third parties, and documents prepared by third parties, where such communication comes into existence for the dominant purpose of being used in connection with actual or contemplated litigation.
In the recent case Howes v Hinckley & Bosworth Borough Council, the Employment Appeal Tribunal (EAT) considered the scope of legal professional privilege; in particular, who qualifies as a “legal adviser” and what amounts to “contemplated litigation”. It also considered the circumstances under which legal privilege may be “waived”.
Previous legal authorities have held that the privilege of legal advice should apply only to those who are professionally qualified, who are members of professional bodies, who are subject to the rules and etiquette of their professions, and who owe a duty to the courts. The EAT in Howes considered whether, in addition, the legally qualified person must be acting in his or her capacity as a professional legal adviser when the advice is given.
In this case, the employee had sought disclosure of legal advice given to her employer in relation to a formal grievance brought by the employee. The employee contended that the advice was not protected by legal advice privilege because the solicitor, from whom the employer obtained the advice, was acting as an employment consultant and not in his capacity as a solicitor. She argued that this was comparable to a solicitor offering advice to a friend outside a professional relationship.
The EAT accepted that if the solicitor instructed by the employer had provided advice in his professional capacity that advice would be protected from disclosure. It also acknowledged that although there could be circumstances in which a qualified lawyer might offer legal advice in some other capacity, there is a presumption that it is offered professionally if he or she is practising as a solicitor. While there was evidence here that the relationship between the solicitor and employer was informal, the employee had produced no real evidence with which to rebut that presumption.
The EAT also considered whether litigation privilege would apply in these circumstances. It accepted that litigation was in contemplation when the council obtained advice. However, it held that that was not enough to attract litigation privilege. It must also be demonstrated that the dominant purpose for which the advice is sought is actual or contemplated litigation. Instead, it found that the “significant, immediate purpose of obtaining the advice” was to attempt to resolve the employee’s grievance and not in preparation for contemplated litigation.
Waiver of privilege
Legal privilege may be waived if the party to whom it applies voluntarily discloses the legal advice they have received. In this case, the employee alleged that the council had waived privilege by sending her a letter explaining the reasons for rejecting her grievance, which included the words: “The independent legal advice supports the original view….” It was argued that while the letter did not set out the contents of the legal advice, by summarising its effect in its letter to the employee the council waived privilege in that advice.
The EAT rejected this argument. It held that the limited and oblique reference to the content of the advice in this case did not amount to a waiver. However, it indicated that it may have taken a different view if the communication had been made and relied upon in the context of the subsequent legal proceedings.
In most cases employers can be assured that advice given by a solicitor will be privileged. However, the risk of privilege not applying will be greater if advice is given informally or outside of the normal solicitor-client relationship. Employers must also be aware of the risk of waiving privilege inadvertently by disclosing, or even simply referring to, legal advice in the course of correspondence or discussions.