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Appeal allowed over an email covered by litigation privilege

Makbool Javaid, Partner - Simons Muirhead & Burton
legal challenges

In the case of Hart v The Abbeyfield (Maidenhead) Society, Mr Hart worked for a charity which operates care homes and care services. He was dismissed without notice for gross misconduct following an incident at work involving an altercation between him and a gardener, Mr Carrington.

Mr Hart made a Data Subject Access Request (“SAR”) to his employer to disclose personal data about him. In response, the employer provided him with 5 pages of emails. Mr Hart submitted ET claims for unfair dismissal, wrongful dismissal, discrimination on grounds of age, race, sex and/or disability, harassment and victimisation.

Following a dispute about disclosure, the ET ordered the employer to send “all documents and electronic records (and transcriptions) of telephone calls, which relate to the incident”, and it also invited the employer to identify any basis on which any document might be inadmissible by reason of privilege or otherwise and ordered that any such issue would be dealt with at the preliminary hearing.

The employer submitted that some pages of a particular file were inadmissible by reason of litigation privilege – the documents were made in contemplation of litigation. Mr Hart contended that a number of documents engaged the iniquity principle whereby communications which would otherwise be privileged must nevertheless be disclosed in certain circumstances. The ET ruled that one document was disclosable for that reason and that the others were not.

Mr Hart cross-appealed against one document. The EAT allowed the appeal. The EAT found that the email which was prima facie covered by litigation privilege did not fall within the “iniquity” exception to privilege although it contained an indication by the employer of a determination to dismiss the employee come what may. The EAT concluded that the ET had omitted to resolve an issue of whether litigation privilege over some further emails had been waived when they were disclosed in response to a Data Subject Access Request.

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