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Legal Privilege may not apply to advice to “Cloak Discrimination”

16 August 2018 #Employment

As a general rule, a lawyer’s advice to their client is legally privileged.  However, there is an exception to this, known as the iniquity exception, which applies when advice is given for the purpose of furthering a criminal or fraudulent design.

In a very significant decision on legal privilege, the EAT recently held that legal privilege may not apply where advice is given on how an employer can conceal an act of discrimination.

In X v Y Ltd, the Claimant was a lawyer who had issued proceedings for discrimination previously against his employer and was subsequently dismissed for redundancy. He then brought further claims for unfair dismissal, discrimination and victimisation. 

The Claimant’s claim relied heavily on two matters which the Respondent argued were subject to legal privilege; an email marked “legally privileged” from a legal adviser to the Respondent in April 2016 (which was posted anonymously to the Claimant) and a conversation between two lawyers overheard in a pub by the Claimant in May 2016 on how they were looking to remove the Claimant as part of the Respondent’s team restructure. The Claimant argued that the April email contained advice on how to conceal victimisation by dismissing the Claimant for redundancy.

Overturning the original ET decision, the EAT held that the April 2016 email was not legally privileged based on the iniquity exception.  In the EAT’s decision, it held that depending on the facts, the discrimination advised may be so unconscionable as to bring it into the category of conduct which is contrary to public policy.

Key to the decision was that the email had focussed on the individual (rather than the general redundancy process and redundancy selection pool as a whole) and the fact he had ongoing claims and grievances citing discrimination. The EAT therefore felt the email advice was “a cloak to dismiss the Claimant to avoid the continuing complaints and difficulties with his employment which were said by him to be related to his disability.”  While not central to the decision, the EAT held that the pub conversation could not help interpret the April 2016 email, as it had not been authorised by the Respondent, but for the avoidance of doubt, legal privilege would not have applied to this either.


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Helen Beech

Helen Beech

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