What is privilege and how can it be waived?
Facts
Employer chose to waive certain privileged material
Employer cannot cherry pick
Comment
An employer was recently ordered to disclose comments that it had received from its external solicitor relating to an employee's dismissal because it had deliberately disclosed other related privileged documents which were helpful to its case. It was found that employers cannot 'cherry pick' which privileged documents to rely on.
What is privilege and how can it be waived?
Legal professional privilege protects the confidentiality of certain legal communications. It comprises two different but related types of privilege: legal advice privilege and litigation privilege.
Legal advice privilege applies to confidential communications between lawyers and their clients for the purpose of giving or receiving legal advice. While litigation privilege applies to confidential communications between parties, their lawyers and third parties for the purpose of obtaining information or advice in connection with existing or contemplated litigation.
If a communication is privileged, it need not be disclosed in litigation. In employment, the idea is that clients should be able to consult their lawyers with the knowledge that what they tell their lawyers, and the advice that they receive, will not be revealed.
Sometimes a party to litigation will choose to reveal a communication which would otherwise be privileged. However, waiving privilege over some communications carries the risk that the party will have to disclose other connected documents. Parties are prohibited from cherry picking the privileged material that they deploy in litigation in case this paints an unfair picture.
The key features of cherry picking (sometimes also called 'collateral waiver') are:
- using legally privileged material in a selective manner to obtain a forensic advantage; and
- a risk of unfairness or misunderstanding arising from the court having only a partial view of the privileged material.
Ms Kasongo was dismissed after 11 months' service.(1) She alleged that the reason for her dismissal was that in the weeks prior to her dismissal she had informed her line manager that she was, or might be, pregnant. The employer refuted that allegation, stating that it had dismissed Kasongo for poor performance and other related concerns.
Kasongo brought claims of automatically unfair dismissal and pregnancy discrimination in the employment tribunal. As part of disclosure, the employer disclosed three documents:
- an attendance note taken by its senior HR manager of a telephone call she had had with the employer's external solicitor regarding Kasongo's dismissal;
- an email sent by the same HR manager to the employer's in-house legal team, which explained the reasons for the dismissal and summarised the advice received from the external solicitor; and
- a draft dismissal letter with the external solicitor's comments redacted.
Somehow Kasongo was able to read the redacted comments in document three and wanted to rely on them as evidence. The tribunal ruled that the comments were covered by legal advice privilege and that Kasongo should not be able to rely on them, since they had been inadvertently disclosed. Kasongo appealed to the Employment Appeal Tribunal (EAT) and argued that her employer was cherry picking by disclosing the first two documents but not the third.
Employer chose to waive certain privileged material
The EAT decided that documents one and two were covered by legal advice privilege, as they contained the solicitor's advice about the employer's rights and liabilities towards Kasongo. The EAT said that legal advice privilege is maintained even where the advice has been:
- communicated by the client to other relevant staff within the organisation; and
- paraphrased rather than being communicated in full.
Therefore, the employer had waived privilege in respect of both documents by choosing to disclose them. Its reason for doing so was seemingly because both documents supported the employer's position because neither referred to Kasongo's pregnancy.
Kasongo alleged that the employer was cherry picking by choosing to disclose the first two documents (that supported its case) and yet redacting its solicitor's comments in document three (which supposedly did not support its case). The employer denied this, stating that since document three was not part of the same transaction as documents one and two, it was not cherry picking.
The EAT found for Kasongo, holding that the employer's distinction between the documents was "wholly artificial" and all three documents concerned the giving of legal advice regarding Kasongo's dismissal and so were part of the same transaction. This was irrespective of the length of time between the giving of the legal advice and the drafting of the letter.
The EAT concluded that the employer had chosen to waive privilege with respect to the first two documents in order to obtain a "forensic advantage". In maintaining privilege over the redacted comments in document three, the tribunal would not have a full understanding of the privileged material and this would be prejudicial to Kasongo. The employer was ordered to disclose the draft letter in full.
This case is interesting as it is one of the few where the EAT has had to grapple with issues relating to privilege. It is also a strong reminder that employers that make a tactical decision to waive privilege must be aware of the potential ramifications of doing so. Clients depend on the confidentiality of their communications with their lawyers. By waiving privilege over certain communications for a tactical advantage, employers must be conscious that they may be also waiving privilege over other communications which they would not want to be disclosed to their opponent.
For further information on this topic please contact Ciara Muldowney or Carla Feakins at Lewis Silkin by telephone (+44 20 7074 8000?) or email ([email protected] or [email protected]). The Lewis Silkin website can be accessed at www.lewissilkin.com.
Endnotes
(1) Tracey Kasongo v Humanscale – full judgment available here.
