Does advice about dismissing “difficult” employees remain “off the record” when there is a risk that advice is discriminatory?

In Curless v Shell International Ltd, the Court of Appeal ruled that an email from a solicitor, advising that a redundancy exercise was the “best opportunity” to terminate an individual who had previously raised disability discrimination allegations against his employer, remained legally privileged and could not be used in the individual’s subsequent Employment Tribunal claim.

Facts

Shell raised concerns about Curless’s performance but, whilst still employed, Curless brought an Employment Tribunal claim against Shell for disability discrimination. The following year, Shell conducted a group-wide redundancy program and dismissed Curless as part of that exercise. Curless subsequently brought a second claim, alleging that his redundancy was a sham and his dismissal constituted disability discrimination and victimisation.

Around this time, Curless received anonymously, a copy of an email sent by a senior in-house employment solicitor at Shell to another in-house solicitor. The email had been sent during the period Shell was conducting the redundancy program and recommended using it to dismiss Curless. The email stated there was a risk he would argue his dismissal was discriminatory, but Shell could put it “into the context of” the redundancy program.

Curless had also overheard a discussion between a group of professionals from a law firm at The Old Bank of England pub, allegedly about Curless’s potential dismissal, with one of the group saying “his days are numbered”, which Curless inferred referred to him.

Curless referred to these events in his Employment Tribunal claim form, but Shell objected, arguing that both the email and the conversation were protected by legal advice privilege and therefore could not be used in his claim.

The decision

Legal professional privilege attaches to communications between a client and their legal advisor when those discussions are for the purposes of obtaining legal advice. The content of privileged discussions cannot be revealed without the client’s consent.

An exception to this is the “iniquity principle” which covers advice for dishonest purposes, e.g. advice on how to commit a crime or fraud or conduct which the law treats as contrary to public policy. In such circumstances, privilege does not attach to those discussion between the client and their legal advisor.

Curless argued that the email contained advice on how to “cloak” as redundancy the real reasons for his dismissal and also on how to victimise and discriminate against him, which is contrary to public policy. He claimed that the iniquity principle applied to the email and also the subsequent pub conversation and this meant he could refer to both during his Employment Tribunal proceedings.

The Court of Appeal disagreed and stated that Curless had misinterpreted the email. They said that the email was the sort of advice employment lawyers give “day in, day out.” It advised on a possible course of action and did not disclose any element of discrimination or victimisation. The Court of Appeal said the email did not contain advice to act in an iniquitous or underhand way.

Furthermore, the subsequent pub conversation was also privileged because only Shell could waive its privilege, not the group of people who were essentially "gossiping" about Curless.

The Court of Appeal ruled the email was clearly a legally privileged document and neither it nor the pub conversation could be relied upon by Curless during his Employment Tribunal case.

Practical issues

• Claimants have to pass a high threshold to successfully argue that the iniquity principle applies, so employers should not be afraid to have full and frank discussions with their legal advisors. It is better that the advisor is aware of all the facts so they can advise on the best course of action.
• Clients should mark emails seeking advice from their solicitors as “Legally privileged & confidential” so it is clear that they are intended to be privileged.
• Clearly, individuals (not just their solicitors) should avoid discussing sensitive employment matters in a public place – you never know who could be listening!

If you would like to discuss this topic further, then please contact the authors below or your usual Stephenson Harwood contact.