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The dangers of relying on privileged material

20 September 2019 #Employment


The Employment Appeal Tribunal (EAT) in Kasongo v Humanscale UK Ltd concluded that where an employer had waived privilege on advice about an employee’s dismissal, they could not cherry-pick which parts of the advice to disclose. 

After being dismissed in February 2018, the Claimant proceeded to bring claims of unfair dismissal and discrimination, on the grounds of pregnancy. She alleged that the reason for her dismissal was that she told the Respondent on 30 January 2018 that she might be pregnant. Disagreeing, the Respondent argued that her dismissal was due to poor performance and work attitude. 

The Respondent then disclosed a number of documents that appeared to corroborate its position, namely: 

  • A note of a telephone call on 25 January 2018 between the Respondent and their solicitors asking for advice about a possible termination of the Claimant’s employment;
  • An email sent by the Respondent’s HR team their intention to terminate and the legal advice they have received; and
  • A draft dismissal letter dated 2 February 2018, where certain comments, made by their solicitors, were redacted. 

The Claimant managed to read a redacted comment (another reminder to be extra diligent in your redacting processes) that stated: “please double check I have this correct factually and that you are not uncomfortable with us saying this. The idea is to do enough to show we’ve not dismissed her for any discriminatory reason” and wanted to reply on this at the hearing. 

Deliberating only over whether or not the materials could be relied on at the hearing, the EAT decided that all three documents were part of the same transaction of legal advice and therefore, by waiving privilege on all but the redacted elements, they had clearly ’cherry-picked’ their disclosure. The 6-day gap between the note and the letter did not affect the continuing transaction of advice meaning the entirety of all three documents had to be disclosed.

Clarkslegal, specialist Employment lawyers in London, Reading and throughout the Thames Valley.
For further information about this or any other Employment matter please contact Clarkslegal's employment team by email at employmentunit@clarkslegal.com by telephone 020 7539 8000 (London office), 0118 958 5321 (Reading office) or by completing the form on this page.
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This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full General Notices on our website.

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Jacob Montague

Jacob Montague
Solicitor

E: jmontague@clarkslegal.com
T: 0118 960 4613
M: 0790 9964 585

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