204: Employer could not waive legal professional privilege in relation to advice on dismissal in partial and selective manner
In Kasongo v Humanscale UK Ltd, the Employment Appeal Tribunal (the EAT) recently decided that an employer had to disclose advice received from its external solicitor in relation to the dismissal of an employee because it had disclosed other privileged documents relating to the same issue. The employer was not permitted to ‘cherry-pick’ which parts of the advice it disclosed.
A party in legal proceedings may choose to disclose a document which would otherwise be privileged if it is helpful to their case. However, if privilege is waived over some communications, there is a risk that other connected documents will also have to be disclosed because selectively disclosing privileged material may result in unfairness or misunderstanding. This is also known as a ‘collateral waiver’.
Ms Kasongo was dismissed by Humanscale Ltd after 11 months’ service. She alleged that the reason for her dismissal was that she had recently informed her manager that she was, or might be, pregnant. The company denied knowing that Ms Kasongo was pregnant and claimed that her dismissal was due to concerns over her poor performance and attendance. Ms Kasongo brought claims of maternity and pregnancy discrimination.
Humanscale disclosed three documents to support its case that Ms Kasongo’s dismissal was already underway before she told her manager that she might be pregnant:
- an attendance note of a telephone call between an HR manager and the company’s external solicitor;
- an email sent by the HR manager to the company’s in-house lawyer setting out the advice received from the external solicitor; and
- a draft dismissal letter prepared six days later by the external solicitor, but with the solicitor’s comments redacted.
Ms Kasongo was somehow able to read the redacted words in the third document and wished to rely on them at the hearing. The Employment Tribunal agreed with the company that the redactions were covered by legal advice privilege and had been inadvertently disclosed, so they could not be used as evidence. Ms Kasongo appealed to the EAT, arguing that the company was cherry-picking by disclosing the first two documents, but not the unredacted letter.
The EAT upheld Ms Kasongo’s appeal, ruling that she could rely on the redacted words. Humanscale conceded that it had waived legal advice privilege in relation to the attendance note and the email. However, it argued that the draft dismissal letter was a stand-alone piece of advice, unconnected to those documents, and that the redacted words could therefore remain privileged. The EAT ruled that this distinction was wholly artificial. All three documents were concerned with giving legal advice about Ms Kasongo’s dismissal and were therefore part of the same ‘transaction’. This was not affected by the six-day gap between the documents. Failure to disclose the redacted comments could result in unfairness to Ms Kasongo since the Tribunal would not have a full understanding of the privileged material as a whole.
This decision illustrates that parties must be very careful in any disclosure exercise, even if it appears to be helpful in advancing their case. Disclosing privileged documents may inadvertently result in losing privilege in other communications which would otherwise be protected, if they are clearly connected. This could seriously undermine a party’s case if the related material is less helpful.