The Abbeyfield (Maidenhead) Society v Hart (UNFAIR DISMISSAL) [2021] UKEAT 00162/21/1908

Appeal against an ET ruling that the iniquity principle applied which meant an email, which would normally have been inadmissible by reason of litigation privilege, should be disclosed to the Claimant. Cross-appeal against the refusal by the ET for another document to be disclosed. Both appeals allowed.

The Claimant was dismissed following an altercation with another member of staff. He submitted a Subject Access Request (SAR) and was provided with 5 pages of emails relating to his dismissal. The ET then ordered disclosure of other documents. The Respondent submitted that some pages of a particular file were inadmissible by reason of litigation privilege - the documents were made in contemplation of litigation. The Claimant 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. The Respondent appealed against the decision about the first document on the grounds that (1) the ET was wrong to rely on X v Y because it had been overturned on appeal (reported as Curless v Shell International [2020] EWCA Civ 1710, [2020] ICR 431) and (2) the ET was wrong to find that the iniquity principle was applicable to the email of 17 January 2017, and erred by focusing on the tone and content of the request for advice rather than on the actual advice given and the rationale behind it. The Claimant cross-appealed against one document that was not to be disclosed on the ground that the ET erred in ruling that the SAR emails are privileged, and should have found that the Respondent waived privilege by voluntarily providing those documents to him in response to the SAR.

The EAT allowed both appeals. The Respondent's first ground failed but 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 employer did not seek, and the adviser did not give, advice on how to act unlawfully. The indication was the sort of frank instruction that a party may feel able to give in a privileged communication. On the Claimant's cross appeal, 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. That issue would be remitted.

Published: 25/08/2021 09:43

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