What factors are considered when applying legal advice privilege?
1st November, 2019
In Curless v Shell International Ltd, the Court of Appeal held that the Employment Appeal Tribunal had erred in law when concluding that 'day in, day out' employment advice contained in an email and in a conversation was capable of being relied upon in an Employment Tribunal claim on the basis of the iniquity principle.
On 30 January 1990, Mr Curless started working for Shell International Ltd (Shell) as Senior Legal Counsel. He suffered from Type 2 Diabetes and Obstructive Sleep Apnoea (OSA), for which he used Constant Positive Airway Pressure equipment.
From 2011 onwards, Shell expressed concerns about Mr Curless’ work performance and ability to meet deadlines. He received low Individual Performance Ratings and was required to provide written reports of the work carried out.
Mr Curless submitted an Employment Tribunal claim on 14 August 2015 (the First Claim), on the basis of disability discrimination. Mr Curless also submitted an internal grievance on 2 January 2016; however, this was dismissed in June 2016. Mr Curless claimed that Shell’s actions amounted to unlawful disability discrimination and/or a failure to make reasonable adjustments.
On 15 February 2016, Shell acquired BG Group Plc and commenced a group-wide redundancy programme. Mr Curless was dismissed for redundancy with effect from 31 January 2017, following three months’ notice.
On 3 March 2017, Mr Curless brought a second Employment Tribunal claim (the Second Claim) alleging further disability discrimination, victimisation and unfair dismissal; he alleged that the redundancy was a pretext by which to terminate his employment. Further, as a result of his protected disclosures (the First Claim and internal grievance), he was subjected to unlawful discrimination and victimisation.
As part of his claim, Mr Curless referred to a conversation he overheard at a bar in May 2016 between lawyers who he believed worked for Lewis Silkin. They discussed a senior lawyer at Shell who was in the process of bringing a disability discrimination claim. They mentioned that this individual’s “days are numbered” and that Shell planned to use the context of the redundancy process as a way of terminating his employment.
Further, in October 2016, Mr Curless was made aware of a discussion that took place in April 2016, in which Shell’s Managing Counsel, Ms Ward, told David Brinley, his indirect line-manager, that “If done with appropriate safeguards and in the right circumstances, while there is always the risk he would argue unfairness/discrimination, there is at least a wider reorganisation and process at play that we could put this into the context of”. Shell could use the re-organisation of the legal department as a way of terminating Mr Curless’ employment, given that there was no obvious resolution to proceedings.
Mr Curless became aware of the above discussion after anonymously receiving a copy of an email dated 29 April 2016 containing details of the same. The email, headed as “Legally Privileged and Confidential”, was from Ms Ward, who provided Shell with legal advice in relation to Mr Curless, and the recipient was Angela Gill (of Lewis Silkin) who had been seconded to Shell and defended the First Claim.
Shell applied to strike out these aspects of the claim on the grounds of legal advice privilege. Mr Curless argued that none of the matters attracted legal advice privilege and that, if they did, privilege does not attach to iniquity (communication for a dishonest purpose and/or conduct which the law treats as contrary to public policy).
Employment Tribunal (ET)
The key issue the ET had to consider was whether elements of the disability discrimination and victimisation claim should be struck out on the basis that they referred to an email and conversation which was legally privileged according to Shell.
The ET concluded that the email contained “a standard piece of advice from lawyers when dealing with redundancy” and it did not disclose any element of victimisation or discrimination; the legal advice was “aimed at avoiding rather than evading possible legal action” and the giving of such advice did not raise the iniquity principle. Shell had not waived privilege on the contents of the email; on this basis, it was a legally privileged document which Mr Curless should not have received.
Further, the conversation Mr Curless overheard in May 2016 was protected by legal advice privilege, as the privilege belonged to Shell and not those having that conversation in the local pub.
Mr Curless appealed this decision.
Employment Appeal Tribunal (EAT)
The EAT held that ET had erred in law when making their decision and concluded that the interpretation of the email was a matter of law. It did not contain any advice on the “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 and of underperformance which he stated are related to his disability and failure to make reasonable adjustments”.
Further, that “the email…is to be interpreted as recording legal advice that the genuine redundancy exercise could be used as a cloak to dismiss the Claimant to avoid his continuing complaints and difficulties with his employment which were said by him to be related to his disability”.
On this basis, the requirements of the iniquity principle were satisfied and the email was admissible as evidence as part of the claim.
Court of Appeal
Shell appealed this decision and was successful. The email was a request for Shell to understand if (and how) Mr Curless could be incorporated into the redundancy process and the risks that would come with this. The Court of Appeal agreed that the advice given was typical advice given by an employment lawyer where there is an employee with performance concerns and a client who was undergoing a redundancy process. The overheard conversation was not given any weight by the Court, stating that advice from a lawyer “cannot be tainted by a conversation involving gossip from someone else after the event”.
This case is an interesting insight into the factors that are taken into consideration when applying legal advice privilege and establishing whether the iniquity exception can be applied to a situation; in relation to the latter, there is a high evidential burden that must be met before a Court will determine that privilege does not apply.
If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.