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A recent Employment Appeal Tribunal (EAT) decision is a reminder that not all communication with advisers you’d deem confidential will be held by a tribunal as such. This decision highlights the need to exercise care if you’re not taking advice directly from a qualified employment lawyer as it may be required to be disclosed at tribunal. Here’s what you need to know.
In the recent EAT decision, Citation Ltd (an HR advisory business) was forced to disclose their advice, which related to an employee’s request for flexible working and reasonable adjustments, as the advice was provided by an HR adviser rather than a qualified lawyer.
Legal advice privilege – if the advice that you take is covered by ‘legal advice privilege’ (LAP) it means the advice cannot be required to be disclosed at tribunal – sometimes very helpful if the advice is that you’re dealing with discrimination or unfair dismissal! If you’re working with a qualified lawyer the advice will be covered by LAP.
Disclosure risk – clearly, this case doesn’t mean that you should only ever take advice from employment lawyers. But, you do need to be aware of the risks of disclosure where you don’t.
If you’re unsure about whether your advice is covered by legal privilege or want to ensure that it is moving forward, Halborns can help – get in touch.
This update is accurate on the date it was sent (22 November 2022), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.