09 December 2019 by Lydia Newman
Pub chat with solicitor is legally privileged
As you may recall, and as previously reported, in the case of Shell International Limited v Curless individuals employed by the Respondent were overheard discussing a potential redundancy situation in a pub.
These discussions were around an email sent by the solicitor to their client (the Respondent) concerning a potential redundancy situation and risks in relation to pursing a redundancy route for dismissal, some of which related to discrimination.
Usually all legal advice is privileged and cannot be disclosed in evidence unless there is evidence of iniquity.
In the EAT it was held that the email advised the employer how to discriminate against Curless surmounting “the high bar of iniquity” and therefore was not legally privileged. The Respondent appealed against this decision on the basis that the EAT had misinterpreted the email and had applied the wrong test for iniquity.
The Court of Appeal (COA) found that the email had been misinterpreted and was not unusual or discriminatory advice. It considered that the advice had been undermined by gossip in the pub (as a result of which the Claimant discovered the existence of the email). As a result the Respondent was successful in their argument and the email was held to be legally privileged by the COA.
This case is helpful in reiterating the high bar for iniquity and also highlights the importance of legal advice privilege. It is crucial that emails and other communications between a client and their legal team (even if this is in-house) clearly state that they are legally privileged and ideally are not disclosed or discussed in public forum or openly within the business.
If they are, there is an argument to be had over whether or not they privileged. Cases of true iniquity, whereby there is wrongdoing or illegal activity, will be rare and, as in this case, standard concerns and legal advice should not ordinarily fall within this category.
There are a number of cases that have recently been considered that relate to this ever-evolving area of law.
As stated in the Equality Act 2010 (EqA) discrimination on the grounds of a protected characteristic including religion or belief is unlawful. In order to be protected as a philosophical belief under the EqA the following criteria need to be met:
Can there be a philosophical belief in the moral right to personal design copyright?
The COA held in the case of Gray v Mulberry Company (Design) Limited that an employee’s belief in their moral right to copyright over their own designs did not amount to a philosophical belief. As previously reported the Claimant had refused to sign an agreement assigning copyright in her designs whilst employed by the Respondent. As a result of her failure to sign the document she was dismissed. The Claimant raised the issue that her refusal to sign was based on a strongly held moral belief to own copyright to her own creative works.
However the COA did not accept her interpretation of events. It found that the real reason for her refusal to sign the copyright agreement (and therefore her dismissal) was because of her belief that the copyright agreement did not protect her interests sufficiently, not as a result of a moral belief. The COA did not find that it is impossible to hold a philosophical belief in relation to a moral issue but not on the facts in this case.
Can vegetarianism amount to a philosophical belief?
In the recent case of Conisbee v Crossley Farms Ltd a tribunal held that vegetarianism did not amount to a belief and therefore was not a protected characteristic under the Equality Act 2010.
The Claimant was a waiter at a hotel and it was accepted that he was a vegetarian. The Respondent contended that he had resigned after having been reprimanded for failing to wear an ironed shirt.
The Claimant alleged that he had been discriminated against on the basis of his belief in vegetarianism, including being given meat-based products without his knowledge.
The Respondent asserted that vegetarianism could not constitute a belief under the EqA. The Employment Tribunal (ET) found, rather than a belief under the EqA, that vegetarianism had many reasons including as a lifestyle choice and that have a belief in relation to an important aspect of human behaviour such as eating was not enough to meet the legal criteria.
Veganism may amount to a philosophical belief
This is potentially in contrast to veganism. In the same decision the ET commented that there was a clear cogency in the beliefs of vegans and the reasons why they are committed to this as a way of life, in that vegans do not believe in eating any type of living creature or products derived from living creatures on the basis that killing animals is contrary to civilised behaviour. This issue will be considered further in the case of Casamitjiana v League Against Cruel Sports later this year.
£500 to advise on settlement agreement
In the recent case of Solomon v University of Hertfordshire (Solomon) the EAT commented on the level of money that would cover advice for an employee on the terms of a settlement agreement.
This is an issue which often comes to the fore when a potential claimant is offered a settlement agreement, particularly in circumstances where they are no longer employed and may consider that they have a potential claim upon which they need advice.
In Solomon the employer proposed a contribution to costs of £500 plus VAT in relation to legal advice. The Judge considered that this amount was sufficient to provide advice on the settlement agreement itself (the ‘terms and effect’) but that it was “wholly unrealistic” for this amount to cover advise on any potential claims and potential value of any claims.
Whilst employers are not under any obligation to contribute to or wholly pay for an employee’s legal advice in relation to settlement agreements such an arrangement is very common, particularly as individuals are legally required to take advice so as to ensure that the settlement agreement is legally binding.
Although the comments made by the Judge in Solomon are not binding it is likely that they will be raised in settlement agreement negotiations and therefore it will be a worthwhile exercise for employers to consider their position in relation to the financing of settlement agreements.
Whilst £500 to cover the costs of advice on the terms and effect may be palatable, an employee seeking payment of thousands of pounds worth of legal advice may not.