Generally, documents relevant to disputes are subject to disclosure. An exception to this rule is the legal professional privilege, which protects against the disclosure of communication exchanged between professional legal advisers and their clients without the client’s consent. However, the legal professional privilege is subject to an “iniquity” exception which states documents created to further a criminal or fraudulent purpose should be disclosed.
In a recent case, an employer sent an email to a HR consultant that indicated an intention that the employee may be dismissed as the employer did not want the employee to return to work. The email was sent before a disciplinary hearing took place.
The EAT held this email could not be classed as an “iniquity” exception to litigation privilege. The employer and their legal adviser did not discuss how to act unlawfully, and the email did not further a criminal or fraudulent purpose. Instead, the EAT held the employer freely communicated with the HR consultant believing the communication was privileged and would not need to be disclosed.
