The claimant was employed as an in-house lawyer. After bringing a disability discrimination claim against his employer, he was put through a redundancy process. Subsequently, he was sent anonymously a copy of an email, marked privileged, sent between solicitors in the legal department which the claimant alleged contained advice on how to commit victimisation by using the redundancy programme as a ‘cloak’ to dismiss him. After his dismissal, the claimant brought a second claim for disability discrimination, victimisation and unfair dismissal which referred to the email.
The EAT said that advice on how to commit discrimination may amount to an iniquity and will not be privileged if the discrimination advised is so unconscionable that it is clearly contrary to public policy. This principle may also apply in the context of other advice – for example, advice on breaching a fiduciary duty may also not be privileged.
Not all advice on how to commit discrimination will be excluded from legal advice privilege. A key fact in this case was that the advice was an attempt to deceive the claimant, and ultimately the employment tribunal.
X v Y Ltd https://assets.publishing.service.gov.uk/media/5b6c232740f0b640c3b1cf61/X_v_Y_Ltd_UKEAT_0261_17_JOJ.pdf