Privilege – tips for minimising the risk of waiver

Earlier this month, the High Court gave an important decision dealing with the scope of privilege and when parties can withhold documents in litigation. Kate Allass, a partner in Dispute Resolution, has produced a helpful analysis of the case. In it she discusses the key implications of the High Court's narrow interpretation of privilege and the types of documents to which it is likely to apply.This is likely to be of particular relevance to in-house lawyers and HR professionals, who are often involved in internal investigations or dismissal decisions from which disputes – and so the issue of privilege – can arise.

Although this was a High Court decision, the principles will apply equally in Employment Tribunals. The decision therefore provides a good opportunity to reiterate some of the principles of privilege in the context of employment law:

• As a reminder, the general rule in litigation is that each party must disclose documents which are in their possession or control and which are relevant to the issues in dispute (irrespective of whether they help or hinder a party's case).
• Privilege entitles parties to withhold documents from such disclosure. Privilege can take a number of forms including legal advice privilege and litigation privilege, the tests for which are set out in Kate's article.
• It is becoming increasingly common for employers to seek assistance from individuals who are not legal qualified, such as HR consultants. Unless litigation is in progress or reasonably in prospect, any communications with or documents created by these advisors will not be privileged.
• Simply marking something as "confidential" or "privileged" is not in itself sufficient to attract privilege.
• Equally, just copying a lawyer into emails is unlikely to attract privilege, unless the communication is genuinely for the purpose of obtaining or giving legal advice. A Tribunal will be careful to scrutinise the real reason for any such correspondence.
• Managers should be reminded at an early stage in disciplinary or grievance proceedings that documents and communications are discloseable and that caution should be taken before putting anything down in writing.
• Care should be taken when producing draft documents, such as draft investigation reports or decision letters. Unless they are generated for the purpose of obtaining legal advice, and so, for example, sent to a lawyer to review, early drafts, as well as final versions of something, will be discloseable.
• Employers should limit the number of people who receive legal advice and avoid forwarding it to other recipients. The more legal advice is circulated, the less likely it is that a court will find it is still privileged.
• Where possible, reference to legal advice in board or meeting minutes and papers should be minimised. Ideally, minutes should state that an issue subject to legal advice privilege was discussed, rather than deal with the issue in detail.

If in doubt, please contact your usual member of the employment team who will be happy to help – and whose advice will be privileged!