Legal professional privilege, litigation advice privilege, iniquitous principle, unfair dismissal, right to appeal, unlawful protection from wages claim, income protection payments
EAT concludes that an email sent prior to a disciplinary hearing, indicating the employer’s intention to dismiss an employee in any circumstances, did not fall within the “iniquity” exception to litigation privilege.
Confidential communications between a party to an employment tribunal and its legal advisers are protected pursuant to the doctrine of legal professional privilege. However, the “iniquity principle” means that legal professional privilege will be lost where a document or communication is created for the purpose of furthering criminal or fraudulent activity.
In Abbeyfield (Maidenhead) Society v Hart Mr Hart was dismissed for gross misconduct. He subsequently submitted a Data Subject Access Request (“DSAR”) and presented several claims at the employment tribunal, including a wrongful and unfair dismissal claim. During the tribunal proceedings Abbeyfield identified a number of communications between Abbeyfield and third party HR consultants which it said were inadmissible by reason of litigation privilege. The tribunal agreed with Abbeyfield’s position, save in respect of one communication from the appeal officer which stated that Mr Hart would not be returning in any circumstances. In light of the view expressed