When instructing solicitors, clients can take comfort from the well-established legal principle that allcommunication between clients and their lawyers is covered by ‘legal advice privilege’. However, this is not the case with regard to advice from HR professionals who are not legally qualified and this was recently confirmed by the Employment Appeal Tribunal (EAT) in the case of Trentside Manor Care Ltd and ors v Raphael .
In May 2018, Ms Raphael, a full-time care home manager, made a flexible working request to reduce her hours to a four-day week, which was agreed on a trial basis. Shortly after, Ms Raphael shared with colleagues on a WhatsApp group certain actions she had taken about a mattress provided to a resident. The following week, she was suspended, allegedly about the way she had handled the matter, in addition to other alleged conduct issues that had come to light. Ms Raphael was subsequently dismissed following a disciplinary hearing.
She claimed that the misconduct charges were a sham and that the real reason for her dismissal related to her earlier flexible working request which, in turn, related to her disability. She issued proceedings in the tribunal for unfair dismissal, disability and age discrimination .
During tribunal proceedings, Ms Raphael’s solicitors applied for disclosure of all email exchanges and advice between Trentside and their HR advisors, Citation Ltd, that related to Ms Raphael from the date when she made her flexible working request to the date of dismissal. Trentside claimed that these documents were protected by legal advice privilege.
The advisers were not, however, a firm of solicitors. Instead, they had an HR and employment law advice team, headed up by solicitors. Although all but one of the managers was legally qualified, the individual client advisers who had provided Trentside with advice during the relevant period, were not.
The EAT decided that the documents requested were not covered by legal advice privilege as the advice had been given by non-lawyers and the fact that the advisers were part of a team headed by a solicitor did not extend the principle of legal privilege to the advice that they gave.
When instructing HR professionals or legal advisors that are not legally qualified, employers should be mindful of the risks of a litigious employee requesting disclosure of correspondence and advice passing between them and their advisers. This will not be covered by legal privilege.
There is an alternative legal principle on which a non-legally qualified HR advisor can potentially rely in this situation, which is litigation privilege. In fact, Citation Limited sought to rely on litigation privilege, in addition to legal privilege, in the case above. However, litigation privilege also comes with a warning in that its protection only kicks in once litigation is reasonably contemplated, pending or existing. In the employment context, advice is often sought way before there is any prospect of litigation. As such, in the above case, Citation Limited were not permitted to rely on litigation privilege in respect of advice given to Trentside in the period between the date of Ms Raphael’s flexible working request and her dismissal.
At Morgan LaRoche, our Employment Team are all qualified solicitors and in instructing us, you can be confident that any advice you receive, or correspondence passing between us, will not be disclosable in tribunal proceedings brought against you.