We all now wonder how we ever survived without email. Modern pressures of time and location will often lead senior managers to despatch a quick confidential email about an employee which is intended for the recipient’s eyes only. However, notwithstanding the best of intentions, higher rules apply. If the employee makes a “subject access request” under the Data Protection Act or issues a questionnaire under the Equality Act or subsequently takes the employer to an Employment Tribunal, the email may have to be produced. All managers should be taught that they should not commit anything into writing unless they are prepared to answer questions about it in a Tribunal.
After Employment Tribunal proceedings have been issued, and after a Defence has been filed, the case papers are referred to an Employment Judge who will issue an Orders giving directions to bring the case to a hearing. The Judge will normally order each party to prepare a list of all documents in its possession custody or control which may be relevant to any of the issues in the claim. The lists are then exchanged between the parties, and each party can call for copies of the documents on the other party’s list.
All relevant documents, including the manager’s email, will be disclosable unless they are communications which are privileged against disclosure.
Amongst the main categories of privilege are:
Legal Advice Privilege (LAP) which covers confidential communications with suitably qualified lawyers so that people can seek and obtain legal advice in the knowledge that the communications involved can never be used against them. Parliament has extended LAP to cover patent attorneys, trademark agents and licenced conveyancers, but it has not (yet) extended LAP to cover advice from accountants or personnel consultants.
Litigation Privilege (LP) covers confidential communications between a client and their lawyer or between the client and/or lawyer and a third party which is made for the dominant purpose of litigation (either pending, reasonably contemplated or existing). In this context it does not matter if some of those giving legal advice are not legally qualified providing the dominant purpose of the communication is the litigation.
Without Prejudice (WP): This rule will generally prevent statements made to the other side in a genuine attempt to settle an existing dispute from being put before a court or Tribunal. Employers should note that for privilege to attach to “without prejudice” discussions (sometimes referred to as “off the record” discussions) they must be declared as such and there must be an ongoing dispute. Often employers will initiate a discussion before any dispute has materialised in which case the conversation will not be privileged. Sometimes employees will argue that they did not validly consent to a “without prejudice” discussion as they did not have equality of bargaining power. The government has decided not to proceed with the proposed privileged “protected conversations” which would have provided wide ranging discussions with privilege. However, there will be a new s.111A to the Employment Rights Act to protect “pre- termination negotiations” (any offers made or discussions held, before the termination of the employment, with a view to it being terminated on terms agreed between the employer and the employee) from disclosure in cases of unfair dismissal. A Statutory Code of Practice will be issued on how to negotiate settlements and make best use of the new legislative provisions.
Care should be taken with board minutes. If minutes are made of discussions in the board meeting for a non-privileged purpose then those minutes will not be privileged.
Care should also be taken not to waive privilege. Privilege may be waived by breaking the confidentiality of the material.
So the spontaneous and damning internal email, even if marked “private and confidential” is likely to be discloseable, and the lesson to learn is that unless you are sure a note or communication is privileged, nothing should be said or done which might cause discomfort in the witness box.