In X v Y Ltd UKEAT/0261/17 the Employment Appeal Tribunal has ruled on the scope of legal privilege, but the judgement might come as a surprise to many. Why is that? In this particular case, a lawyer sent an email to their client containing legal advice on the dismissal of an employee. In any normal circumstance, a lawyer would tell you that the overwhelming likelihood is that the email would be protected by legal advice privilege.
Not so in this case, said Lady Justice Slade.
The reason for this was that the email sent by the lawyer to their client contained advice on how to discriminate against an employee and this ‘surmounted the high bar of iniquity’. The decision may come as a concern, particularly to employment lawyers, given that Counsel for the respondent said that the type of advice given in the email was the sort given ‘day in day out’.