X v Y Ltd UKEAT/0261/17/JOJ

Appeal against a decision that parts of the Claimant's ET1 should be struck out on the basis that they depended on information that was protected by legal advice privilege. Appeal allowed and the decision to strike out those paragraphs was set aside.

The Claimant was disabled and had raised a grievance that the Respondent had failed to make reasonable adjustments. The Respondent had also raised concerns about his performance. They then announced a program of redundancies and the Claimant was placed in the redundancy consultation process; he was subsequently made redundant. Before this happened, the Claimant overheard a conversation in which it was discussed how the Claimant could be managed out by severance or redundancy. He was also sent, anonymously, an email which, the Claimant alleged, contained advice on how to commit unlawful victimisation by seeking to use (and ultimately using) the redundancy/restructuring programme as a cloak to dismiss the Claimant. The Claimant relied on the email in his ET1. The EJ struck out those paragraphs on the basis that they were protected by legal advice privilege, rejecting the Claimant's argument that privilege could not be claimed as the advice in the email was given for the purpose of facilitating an iniquity. The Claimant appealed.

The EAT allowed the appeal. In considering whether privilege could not be claimed as the advice in the email was given for the purpose of facilitating an iniquity, the Employment Judge erred in his interpretation of the email. Prima facie, the email gave advice on how to cloak what would otherwise be a disability discrimination dismissal as a dismissal for redundancy. Properly interpreted the email surmounted the high bar of iniquity. There was a strong prima facie case that the email recorded not just that the Claimant could be dismissed in a redundancy exercise but may claim disability discrimination.


Published: 10/08/2018 11:07

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