When is legal advice privileged?

In light of a recent tribunal, Guy Guinan considers whether privilege rules apply if the guidance is given by someone not legally qualified

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The duty to disclose all relevant documents in proceedings before the employment tribunal plays an important part in the fair conduct of litigation. There are, however, important exceptions where communications that are ‘privileged’ will not have to be disclosed. 

Communications can attract privilege in several ways, two of which are often linked; these are ‘legal advice privilege’ and ‘litigation privilege’. The first treats as confidential the advice received by the party from their solicitor, and the second treats as confidential communications made in preparation for litigation. 

In Trentside Manor Care and Others v Mrs Raphael a dispute arose as to whether either of these types of privilege applied, and if so whether it would give a party grounds to refuse the other side’s request for disclosure of documents.

Mrs Raphael, a care manager at a residential home, had made a flexible working request to work four rather than five days per week because of health issues. The request had been granted on a trial basis. 

There was subsequently an incident at work that involved Raphael arranging for a resident to have a different mattress and bed, the details of which she had posted in a WhatsApp group. Concerns were raised about the way in which Raphael had dealt with this and other matters; she was suspended and a disciplinary process began that resulted in her dismissal. 

Raphael claimed the real reason for her dismissal was her flexible working request, which was related to her disability. She applied for disclosure of documents relating to communications between the employer and their advisers during the period from when she made her flexible working request to the point when she was dismissed. The employer claimed that such documents were protected by both legal advice privilege and litigation privilege. 

It was relevant to the issue of privilege that the employer’s external advisers were not a firm of solicitors but a company that specialised in providing advice to employers in relation to business transactions, employment law, HR issues and health and safety. While the company had an HR and employment law advice team, headed by solicitors, and in which all but one of the managers was legally qualified, the individual client advisers were not. 

In these circumstances, given that the company providing the advice was not a firm of solicitors, it was held that documents relating to the advice sought that had been provided in the earlier period (when the employers were considering the request for flexible work) were disclosable as they were not covered by litigation or legal advice privilege.

However, the documents relating to the advice received as at the point in time that the employer was deciding to suspend Raphael were not disclosable as these were covered by litigation privilege. 

Key points

The decision highlights that there are several factors to consider when assessing whether any communication will be privileged. 

For legal advice privilege to apply it must be considered who has provided the advice. It should not be presumed to apply where the advice was provided by non-lawyers. 

In relation to litigation privilege there are different factors to consider. The main one being to ascertain the dominant purpose of seeking advice and whether at that time there was a reasonable prospect of litigation being pursued.

In all cases, regardless of the type of privilege that might apply, the communications should not be circulated too widely as there is a risk that privilege will be lost.  

Guy Guinan is an employment partner at Gateley Legal