Fleming v East of England Ambulance Service NHS Trust

Legal professional privilege protects confidential lawyer-client communications made for legal advice. It is absolute unless waived, and the iniquity exception requires conduct akin to sharp practice, fraud, or conduct wholly contrary to public policy.

Evidence of an internal disciplinary panel’s private deliberations is not inadmissible merely because it was covertly recorded. The tribunal must balance the public interest in private, candid deliberation against the public interest in admitting relevant evidence. The balance is fact-sensitive. It may favour admission where the recording and the employee’s reaction to it materially bear on a later dismissal decision.

The claimant, a vehicle technician, brought Employment Tribunal claims for disability discrimination and unfair dismissal following his dismissal for gross misconduct on 23 November 2015.

At a disciplinary meeting on 13 August 2015, he covertly recorded discussions between the internal panel during breaks. The recording included references to the Trust’s solicitor’s advice, a telephone conversation with the solicitor, and non-privileged panel discussions. Having heard the recording, the claimant became upset, declined to engage further with the process, and was later dismissed.

Employment Judge Postle ordered on 27 July 2016 that the claimant could not rely on the recording because it was private and legally privileged. The claimant appealed. The Trust agreed that the appeal should effectively be allowed and that the EAT should determine the permissible use of the recording.

1. Appeal allowed. The Employment Judge’s blanket exclusion order could not stand. The EAT determined the admissibility issue itself rather than remitting it.

2. References made by panel members to advice from the Trust’s solicitor, and the telephone conversation between the solicitor and the panel members, were confidential lawyer-client communications for legal advice. They were protected by legal professional privilege. The claimant had not shown that the advice was sought or given to effect iniquity. He could not use that material for any purpose unless the Trust waived privilege.

3. The remaining discussions were private deliberations connected with the disciplinary hearing and the panel’s decision on how to proceed. There was a strong public interest in maintaining their privacy, even though they had not been expressly designated private and were not final deliberations. A covert recording was not, by itself, a reason to exclude the evidence.

4. The applicable inquiry required a balance between the public interest in preserving candid internal deliberation and the public interest in allowing a litigant to deploy relevant evidence. The comments were not uniquely probative or incontrovertible evidence of disability discrimination. Had the events of 13 August 2015 ended the matter, privacy would have prevailed.

5. The later history was decisive. The claimant had heard the recording, was greatly upset, informed senior Trust personnel of his views, and then declined further engagement before dismissal. The Employment Tribunal could not properly assess the dismissal without considering the non-privileged discussions that prompted that reaction. The claimant could therefore rely on the non-privileged recording for any purpose, including his challenge to the disciplinary process and his allegation of discriminatory motivation. A further case-management hearing before a different Employment Judge was recommended to ensure privileged material was excluded from transcripts, documents and evidence.

• Employment Appeal Tribunal: Allowed the claimant’s appeal and replaced the Employment Judge’s blanket exclusion of the recording with a ruling admitting its non-privileged parts.
• Employment Tribunal: On 27 July 2016, Employment Judge Postle ordered that the claimant could not rely on the recording at the final hearing because it was private and legally privileged.