In X v. Y Ltd, Y lodged a claim alleging disability discrimination and victimisation. An ET struck out two paragraphs in the claim form referring to an email from a member of Y Ltd’s legal department to a solicitor seconded to Y Ltd, on the basis that they were protected by legal advice privilege. The ET rejected an argument that legal privilege had been lost because of ‘iniquity’, i.e. the advice was designed to create a sham situation and was unethical. The EAT upheld X’s appeal. If the advice had gone no further than “you may select the Claimant, an employee with a disability, for redundancy but you run the risk of a claim by him” it would not have reached the high threshold required to disapply legal advice privilege. But, the email records legal advice that a genuine redundancy exercise could be used as a cloak to dismiss X to avoid his continuing complaints and difficulties with his employment which he alleged related to his disability. A strong prima facie case of iniquity had been established because the advice was not only an attempted deception of X, but if persisted in, a deception of an ET in any future legal proceedings.
This update provides summary information and comment on the subject areas covered. Where employment tribunal and appellate court cases are reported, the information does not set out all of the facts, the legal arguments presented, and judgments made in every aspect of the case. Click on the links to access full details. If no link is provided, contact us for more information. Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, SM&B cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.
This provides summary information and comment on the subject areas covered. Where employment tribunal and appellate court cases are reported, the information does not set out all of the facts, the legal arguments presented and the judgments made in every aspect of the case. Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, we cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.