News and Events

Loss of Legal Professional Privilege when Advising how to Disguise Discrimination

  • Posted

Does advising a client how to conceal an act of discrimination engage the "iniquity" exception to legal advice privilege?

Yes held the EAT in X v Y Ltd.

Advice provided by solicitors, barristers and legal executives is normally exempt from disclosure. There is an exception to that rule where an adviser is guilty of an "iniquity" that goes:

"...beyond conduct which merely amounts to a civil wrong; he has indulged in sharp practice, something of an underhand nature where the circumstances required good faith, something which commercial men would say was a fraud or which the law treats as entirely contrary to public policy..."

The EAT considered an appeal by X against an order striking out the part of his case which relied on an internal email from Y Ltd's solicitors. X said that he had been victimised by Y Ltd for raising complaints of disability discrimination. The internal email included passages saying:

"...there is at least a wider reorganisation and process at play that we could put this into the context of..." and "otherwise we risk impasse and proceedings with ongoing employment with no obvious resolution."

On appeal, the email as a whole was held to be a means of advising Y Ltd to conceal a victimisation dismissal behind a wider redundancy procedure. The EAT therefore allowed X's appeal against the strike out, holding that:

"...a strong prima facie case has been established...not only [of] an attempted deception of the Claimant but also...deception of an Employment Tribunal...".

Thanks to Matthew Jackson of 10 KBW for preparing this case summary.