Although all communication between clients and their lawyers is covered by legal privilege, the Employment Appeal Tribunal (EAT) has held in Trentside Manor Care Ltd and ors v Raphael that communication between a client and their human resource (HR) advisors was not covered by any privilege as the advisors were not legally qualified.
In May 2018, Ms Raphael, a full-time care home manager, made a request to go down to a four-day week as a reasonable adjustment to manage her disabilities. Her request was agreed, albeit on a trial basis, from mid-June.
About 10 days later, she shared certain actions she had taken about a mattress and bed provided to a resident on a management WhatsApp group. She was suspended the following week allegedly about the way she had handled that matter, as well as other issues about her conduct that had come to light. After a disciplinary hearing, she was dismissed in August.
She claimed that the misconduct charges were a pretext for dismissing her and that the true reasons related to her earlier flexible working request which, in turn, related to her disability. She lodged complaints of unfair dismissal, direct disability and age discrimination and disability-related discrimination.
Ms Raphael’s solicitors then applied for disclosure of all correspondence, advice notes and emails between Trentside and their HR advisors, Citation Ltd, that related to Ms Raphael from the date when she made her flexible work request to the date of dismissal. Trentside claimed that these documents were protected by legal advice privilege as well as litigation 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 tribunal initially ordered Trentside to provide copies of the disputed documents to Ms Raphael’s solicitors and counsel, but not to Ms Raphael personally. After Trentside appealed against this order, it was changed so that it only had to provide the documents to the tribunal judge.
The tribunal also held that documents relating to advice provided by Citation Ltd after Ms Raphael made her flexible working request were not covered by either litigation privilege or legal advice privilege (which is wider than the former). As for the period after the suspension, it held that the documentation was covered by litigation privilege only.
The EAT allowed Trentside’s appeal with regard to the tribunal’s order for discovery, holding that it was “wrong in principle” to require the organisation to share the documents with Ms Raphael’s representatives as it would have compromised the very privilege that was being asserted. Although her representatives were not entitled to share the contents with her, it would have put them in a position of “irreconcilable conflict”.
In terms of deciding which documents were covered by privilege, however, the tribunal was right to conclude that the dominant purpose of seeking advice after Ms Raphael made her flexible working request was not because of possible litigation. They were not, therefore, privileged.
The tribunal was also correct to conclude that the advice given by non-lawyers was not covered by legal advice privilege. 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.