The claimant was dismissed by the respondent on 28 April 2023. Two days earlier, she was accidentally copied into an email chain of communications between the first respondent and its legal representative. The chain consisted of seven emails. The appellant sought to rely upon the chain of emails in support of a complaint of victimisation. The respondent submitted that the emails were subject to legal advice privilege but the claimant submitted the emails fell within the “iniquity exception” because they were evidence of a discussion about fabricating the reason for dismissal and the identity of the decision-maker. In the ET, the judge concluded that the appellant had not established that the emails were subject to the iniquity exception and the claimant was not permitted to rely upon them in evidence at the full hearing of her complaints.

In the EAT the claimant submitted the judge had erred in law but The President, Lord Fairley, rejected the submission as, read as a whole and objectively, the correspondence did not amount to a discussion about fabricating a false position or acting in an underhand or iniquitous way and the claimant had not shown the threshold necessary to establish the iniquity exception had been crossed. The advice given by the solicitor was the sort of advice that employment lawyers regularly have to give to clients and was within the normal scope of professional engagement.