The claimant made a request for flexible working, which, after discussion, was granted on a trial basis from June 2018. Following a subsequent incident at work, she was suspended and charged with misconduct, leading to her dismissal. It was her case that the misconduct charges were a pretext for dismissing her and that the true reasons related to her earlier flexible working request which, in turn, related to disability. The Claimant applied for disclosure of documents relating to communications between the Respondents and their advisors during the period from when she made her flexible working request to when she was dismissed. The Respondents claimed that such documents were protected by both litigation privilege and legal advice privilege. The advisers were not a firm of solicitors, but had an HR and Employment Law advice team, headed by solicitors, and in which all but one of the managers was legally qualified. However, the individual client advisers were not. The ET directed that disclosure should be made to the Claimant’s solicitors, but not to the Claimant herself, for the purposes of the substantive determination of the privilege issues. The ET also held that litigation privilege did not apply to the advice given before the end of June 2018, and in relation to the same decision, the judge held that legal advice privilege did not apply to the advice given before that date. The Respondents appealed.

The EAT allowed one part of the appeal. The order for disclosure of documents to determine the privilege issues was not a proper exercise of the ET’s case management discretion as it was wrong in principle. It would have compromised the very privilege that the Respondents were asserting, before the tribunal had determined whether they were entitled to it or not; and, had it been complied with, it would be likely to have placed the Claimant’s legal advisers in a position of irreconcilable conflict. On the second issue, the ET was not wrong to conclude, on the material presented to it, that the dominant purpose of seeking advice in the earlier period was not because there was a reasonable prospect of litigation. The ET was also not wrong to conclude that the giving of advice by non-lawyers was not covered by legal advice privilege.