Beware the poison pen (or email)
The Employment Appeal Tribunal (EAT) has given us a stark reminder that the utmost care should be taken when choosing the content and format of your communications relating to your workforce.
During the standard course of Tribunal proceedings, parties must disclose to each other all and every document, email, text message, handwritten note or other communication in any form relating to the case. Disclosure is a vital component in ensuring the fairness in Employment Tribunals. However, documents can be protected by two different privileges, meaning they need not be disclosed – legal advice privilege and litigation privilege.
Legal advice privilege protects communications between client and lawyer. But litigation privilege can protect communications outside this relationship, for example, in-house or with an HR Consultant where litigation is a possible outcome.
In Abbeyfield (Maidenhead) Society v Hart, Mr Hart was dismissed for gross misconduct. He brought claims including wrongful and unfair dismissal. Mr Hart also submitted a Data Subject Access Request. His employer had engaged a third party HR Consultancy. Many communications were found to be protected by litigation privilege.
However, one email from the company instructed the Consultants that Mr Hart was not to return in any circumstances. The employer argued that this email was protected by litigation privilege. However, the use of litigation privilege is limited, as it cannot be used to conceal iniquity (sometimes called the crime-fraud exception). The Tribunal found that the email was iniquitous, appearing to evidence a predetermined and therefore unfair outcome, and should be disclosed.
Abbeyfield appealed and the EAT went on to find in the employer’s favour, concluding that this instruction was not iniquitous as it did not show that the employer had sought advice on how to dismiss unlawfully; nor that the HR Consultancy had advised how to dismiss unlawfully.
This case serves as a useful reminder to take extreme vigilance in ensuring nothing is written down that you would not want an employee to see. This is particularly relevant at a time when DSARs are frequently made by employees contemplating litigation (and even when they are not). Processing these requests takes a great deal of time and expense, often involving vast quantities of paperwork. Human error may seem almost inevitable, but, to add insult to injury, if an otherwise privileged email is accidentally sent to the employee it is also arguable that that privilege is deemed to have been waived. Mr Hart’s case has been sent back to the Tribunal to consider exactly this point.