Appeal finds leaked email was a ‘cloak’ to lay off lawyer claiming discrimination

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An employment tribunal appeal has found that a leaked internal email and a conversation overheard in a pub are not protected by legal professional privilege because they suggested some form of deception.

In X v Y Ltd, the Honourable Mrs. Justice Slade DBE ruled that an employment tribunal had been wrong to strike out a case brought by a lawyer who had worked for his company for 27 years until he was dismissed in January 2017.

The unnamed employer had announced a programme of voluntary redundancy in April 2016, less than a year after the lawyer, who suffers from type 2 diabetes and obstructive sleep apnoea, had submitted his first claim for disability discrimination and following his failed application for certain roles.

The claimant then received a leaked email, which was not fully disclosed by the tribunal, which set out how the company might avoid legal action, warning that it risked an ‘impasse’ of legal proceedings.

Less than a month later, the claimant overheard two women in the Old Bank of England pub on Fleet Street discussing a complaint by a senior lawyer at his company and how there was a ‘good opportunity’ to manage him out by severance or redundancy.

The judge said legal privilege would have applied to the email if it had simply stated there was a risk of a claim by the person being made redundant.

At the first tribunal, Employment Judge Tsamados said it constituted legal advice aimed at avoiding rather than evading legal action, and this was routine legal work that did not raise the question of iniquity.

Mrs. Justice Slade said the email was used as a ‘cloak’ to dismiss the claimant to avoid his continuing complaints and difficulties with his employment.

She said: “The email does not record any advice on neutral selection criteria for redundancy. It concentrates exclusively on how the redundancy can be used to rid the respondent of ongoing allegations of discrimination by the claimant.”

Samantha Randall a Palmers solicitor and employment law expert said: “The dishonest actions of the employers in this case rightly opened themselves up to a wave of legal action from the claimant.

“Organisations need to take extra care about the locations in which legal matters are discussed because as you can see in this case, someone overhearing a conversation can cause a lot of trouble.”

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