Legal advice privilege

October 24th, 2019

In Curless v Shell International Ltd (2019) EWCA Civ 1710 the Court of Appeal has upheld the decision of an Employment Judge to strike out parts of a disability discrimination and victimisation claim on the basis that they referred to an email which attracted legal advice privilege.  The employer (SI Ltd) was seeking advice on whether the claimant (C) –who had already made a claim of a failure to make reasonable adjustments – might be either offered voluntary severance or dismissed on the grounds of redundancy as part of a restructuring exercise. The Court of Appeal viewed this as the sort of advice which employment lawyers give ‘day in, day out’. It did not agree with the EAT’s interpretation that this was advice to act in an underhand or iniquitous way by ‘cloaking’ a discriminatory dismissal as a redundancy. SI Ltd was seeking legal advice on whether, and if so how, C might be either offered voluntary severance or dismissed on the grounds of redundancy in the course of an ongoing reorganisation. Advice was being given on how this could be done ‘with appropriate safeguards and in the right circumstances’. This is a type of advice employment lawyers give in cases where an employer wishes to consider for redundancy an employee who (rightly or wrongly) is regarded by the employer as underperforming. The Court of Appeal rejected C’s attempts to rely upon emails sent over two years previously as colouring the otherwise innocuous advice with an iniquitous meaning: these had merely referred to his medical condition and outlined various possibilities.

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