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Employment law: A matter of privilege

01 October 2018 by Lydia Newman

Employment law: A matter of privilege

A warning that legal advice from lawyers may not always be privileged, while further action is planned over sexual harassment protection

In the recent case of X v Y Ltd, the Employment Appeal Tribunal (EAT) found that a leaked email and a discussion heard in a pub between legal advisors were not legally privileged, as a result of the fact that they suggested some iniquity.

Legal advice from solicitors and barristers is usually not disclosable. However, this is not the case if any advice gives rise to an iniquity. This is practice of ‘an underhand nature where the circumstances required good faith … a fraud or which the law treats as entirely contrary to public policy.’

At initial hearing in the Employment Tribunal (ET), the judge found that the evidence was inadmissible on the grounds that it was privileged. Furthermore, the
judge stated that it was legal advice intended to avoid litigation.

The matter related to a lawyer who had been employed by a firm for 27 years and raised a grievance alleging disability discrimination. A year later, the firm started a round of voluntary redundancies. It was argued by the claimant that the email and the conversation were disclosable on the basis that the legal advice was not to dismiss the claimant as part of a redundancy process but to conceal a victimisation dismissal.

“Any document, even containing legal advice, may be disclosable”

This argument was accepted by the EAT, which held that there had been an attempted deception of the claimant and the ET. The email and conversation record should therefore be disclosable and form part of the case to be considered.

This case highlights the fact that although legal advice privilege usually stands, it is not always the case. Any document, even one containing legal advice, may be disclosable and extreme care should therefore be taken to ensure that any document can stand up to scrutiny if examined in the future.

Philosophical belief

In the recent case of Gray v Mulberry the ET considered whether or not it is possible to discriminate on the grounds of philosophical belief if only one person holds that belief.

Ms Gray worked for Mulberry. She was also an author and was writing a novel and screen play. She was given a standard employment contract that included a clause stating that any copyright in the work created during her employment was assigned to the employer. She was concerned that Mulberry would have ownership of her creative writing, even though they agreed to amend the contract. She was subsequently dismissed.

“Even if her belief was philosophical, she could not have been indirectly discriminated against because she was the only one to hold the belief and not part of a group”

Ms Gray contended her belief in the sanctity of copyright law was a philosophical belief. The ET did not consider that the belief qualified as a philosophical belief. The EAT decided that the ET’s decision was correct.

Moreover, the EAT held that even if her belief about copyright law was philosophical, she could not have been indirectly discriminated against because she was the only one to hold the belief and was not part of any group. The claimant has been given leave to appeal to the Court of Appeal.

This case is helpful for companies for a number of reasons. It gives a good insight into what constitutes a philosophical belief and also the requirements for
indirect discrimination should there be a protected characteristic.

Although philosophical belief claims are relatively rare, employers should be aware that if a belief qualifies under the Equality Act 2010 it would be a protected characteristic. Examples of philosophical beliefs that are protected include pacifism, atheism and humanism.

Tackling sexual harassment

The Women and Equalities Commission (WEC) has produced a report on Sexual Harassment in the Workplace, following recent high-profile campaigns such as #metoo and #timesup. The WEC has recommended further changes to enhance protection in the workplace, including:

  • A duty on employers to protect employees from sexual harassment in the workplace
  • Reintroducing employer liability for third-party harassment
  • Allowing tribunals to award punitive damages in sexual harassment cases
  • Extending sexual harassment to interns and volunteers
  • Extending the time limits to bring claims from three to six months.
  • Gender pay gap update

The current position in relation to gender pay gap reporting has been considered by the Business, Energy and Industrial Strategy (BEIS) committee. According to BEIS committee: ‘The UK has one of the highest gender pay gaps in Europe and pay reporting can only be the first step in closing it.’

The BEIS committee’s report recommends increasing the number of companies required to report and for companies to produce more detailed reports, along with action plans to help balance any identified gap.

Recommendations also include:

  • Inclusion of an explanation for pay differences and to clarify additional payments such as bonuses and any differences in such benefits
  • Inclusion of partners
  • Obligations for gender pay gap reporting to be mandatory for all companies with 
  • 50 or more employees
  • Giving the EHRC enforcement powers to fine for non-compliance.

Both the WEC and BEIS committee reports are now with the government for consideration and to decide whether or not to implement any of the recommendations.

Further discussion of the BEIS committee recommendations on the gender pay gap can be found in the September 2018 issue of Governance and Compliance on page 12, or online.

Dying to work campaign

You may or may not be aware of this campaign, which has been running for a number of years. The campaign aims to encourage employers to sign a charter committing to support employees with a terminal illness. A number of high-profile companies have signed the charter including Lloyds Banking Group, Royal Mail, Rolls-Royce and The Co-operative Group. 

The charter asks employers to:

  • Support employees after diagnosis and recognise that reasonable work, if safe, can be of benefit to employees with a terminal illness
  • Provide employees with security of work and to work collaboratively towards the best course of action in relation to their employment, without undue financial loss.

Although your company may not wish to sign up to the charter, you should still consider long-term absence and sickness policies and their implementation, ensuring fairness to employees and colleagues during such difficult times. 

Lydia Newman is an employment solicitor

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