Care needs to be taken with advice given by HR and Insurance advisers to employers

Noella Gooden

Update from Noella Gooden, Solicitor (Australian qualified), Employment

The concept of ‘legal advice privilege’ (also known as ‘legal professional privilege’) means legal advice given by a professional lawyer (including anyone working for a firm of solicitors) to a client is protected and cannot be released including within a court of law or via other means such as a Data Subject Access Request under the GDPR rules. In this way, legal advice between a lawyer and a client can remain confidential.

In a recent Employment Appeal Tribunal (EAT) case, Citation Ltd, the HR advisory service, was forced to disclose documents containing the advice that it had given to its employer client in relation to a request for flexible working and reasonable adjustments. Citation is not a firm of solicitors. Although it had an HR and Employment Law advice team headed by solicitors, the individual client advisers were not legally qualified. Accordingly, no legal advice privilege attached to the advice that the advisers provided, unless it was confirmed by a qualified lawyer. Unfortunately for the employer in this case, it was required to release the advice that it had been given by the Citation adviser.

The EAT also looked at the question of the other type of privilege, which is known as ‘litigation privilege’. This is not limited to communications between lawyers and their clients and so it can apply to advice given to an employer by a non-lawyer adviser working for an HR advisory service or insurance helpline.  However, in these cases, the communication must have been created for dominant purpose of litigation or contemplated litigation.

In this case, the EAT looked at the question of when is employment litigation ‘contemplated’.  It said that that there must be a real possibility of a claim to an employment tribunal. This could occur in a case where an employee is dismissed.  However, it would be unlikely to apply where the advice was given with a view to minimising the risk of litigation or compensation.  That may be the case in most non-gross misconduct cases and grievances.

Care needs to be taken when seeking advice from an HR advisory service or an insurance helpline if, as will often be the case, the advice is not that of a qualified lawyer.  If you are unsure about the status of your employment law advice in the context of protecting documents that you do not want to be made available to an employee with whom you are in dispute, the Employment Law Team at Grant Saw Solicitors will be happy to assist you. Feel free to email me or contact the team on 020 8858 6971.