Do you use HR consultancy services? Did you know that a large part of their advice will be disclosable in data access requests and discovery?
This has long been an issue and the recent case of Carron v Fastcom determined by the EAT in December is a stark reminder of the boundaries you need to put in place when using HR consultants.
This was a case of unfair dismissal. Fastcom had engaged Penninsula Business Services to advise them in relation to the employee's grievance. Before the hearing date the employee had submitted a data access request to Fastcom which included a request for the advice provided by Penninsula to Fastcom. Fastcom did not provide the communications to the employee and sought to rely on legal privilege in withholding this information.
There are 2 types of legal privilege that can be applied to advice:
a. legal advice privilege - this relates to communications between a lawyer and client for the purposes of giving legal advice; and
b. litigation privilege - this relates to communications between a lawyer and client when preparing for litigation.
In the Fastcom case the EAT stated that legal advice privilege could only apply to communications between a lawyer and a client. It categorically did not apply to legal advice from any other type of advisor e.g. consultant, representative body or other advisor. This means copies of these advices would have to be provided to an employee as part of a data access request. This disclosure could cause serious problems for employers in future litigation! The smoking gun could be among these communications.
The EAT did find that litigation privilege may apply to specialist consultant advice in some situations, but if it did apply, it could only arise after the employer has been notified of an actual claim.
This is a serious potential risk for employers who use HR consultants. Think about the information that is shared in these communications! Details of an employer's risk, recommended strategies on managing employees out, confirmation of liability by the employer. The list is frightening!
It is absolutely not the case that employers should abandon their HR consultants wholesale and they are a useful resource in managing HR matters particularly where an employer does not have a HR team. However employers need to start being mindful of the type of advice they seek from their HR consultants and when is the appropriate time to call in the lawyers to ensure confidentiality and privilege applies. Under the normal rules of privilege, communications with lawyers for the purposes of obtaining legal advice will be covered by legal privilege and will not be disclosable.
While employers may be reluctant to get solicitors involved early the above risk shows it actually pays to call your lawyer quickly.
If you need advice that is covered by legal privilege please contact a member of our Employment Law & Data Protection Team. Please click herefor contact details.
Disclaimer:This article is for guidance purposes only. It does not constitute legal or professional advice. No liability is accepted by Leman Solicitors for any action taken or not taken in reliance on the information set out in this publication. Professional or legal advice should be obtained before taking or refraining from any action as a result of the contents of this publication. Any and all information is subject to change.
The Tribunal determines that no such privilege attaches to their communications with Peninsula, and that communications between Peninsula and the respondent prior to the date the claimants claim was filed with the Workplace Relations Service are not privileged.