A recent case, Howes v Hinckley and Bosworth Borough Council, considered whether legal privilege applied to advice given by an independent solicitor to the council. Legal privilege is the rule that legal advice given by a solicitor acting as a solicitor is privileged and therefore cannot be disclosed at an employment tribunal. Advice from solicitors who work as employment consultants may not be covered by legal privilege. Advice from employment or human resources consultancy staff, who are not solicitors, will not be subject to legal privilege. This could have consequences for employers who seek advice from consultants as that advice could be disclosed during an employment tribunal.
In Howes v Hinckley and Bosworth Borough Council, the employee had raised a grievance against her employers, the council, which was considered by in-house lawyers and rejected. The employee cast doubt on the independence of the advice and her employer decided to take advice from a solicitor independent from the council. The council maintains that the advice given by the solicitor was protected by both legal advice privilege and litigation privilege. Legal advice privilege protects confidential communications between a client and legal advisor with regard to legal advice. Litigation privilege protects confidential communications between a client, their legal advisor and a third party, such as an expert, where the purpose of such communications are in connection with actual or contemplated litigation.
Howes argued that the advice given by the independent solicitor was not protected by legal advice or litigation privilege because he was acting as an employment consultant, not as a solicitor. She further argued that Hinckley and Bosworth Borough Council had indicated that the independent solicitor’s advice would determine how they were going to resolve her grievance, so effectively the solicitor was acting as an arbitrator or adjudicator.
Hinckley and Bosworth Borough Council responded that legal advice privilege applied because it was legal advice from a practising solicitor. They further argued that the advice was covered by litigation privilege because there was evidence from the employee that she had already contacted solicitors when the advice was sought.
The employment tribunal judge upheld the council’s response. The employment appeal tribunal agreed.
If you would like to discuss an employment law matter in confidence, please contact either Vaishali Thakerar or Ashley Hunt on 0116 212 1000 now. Lawson West offer free initial advice.
