Kasongo v Humanscale UK Ltd

Legal advice privilege protects confidential communications made for obtaining or giving legal advice, including an internal communication which conveys that advice to relevant staff. A party which elects to disclose such material waives privilege in it.

Waiver cannot be exercised selectively where this would create unfairness or a misleading partial account. Whether further material must be disclosed depends on the relevant transaction. Documents forming a continuing course of legal advice on the same dismissal may comprise one transaction, despite a short interval between them. Where disclosed advice is deployed to support the employer's asserted reason for dismissal, fairness may require disclosure of linked legal comments addressing that reason.

The Claimant appealed against an Employment Tribunal decision refusing her permission to rely on redacted passages in a draft dismissal letter prepared by the Respondent's solicitors.

The Respondent had disclosed a note recording external legal advice and an email transmitting that advice internally. Both documents supported its case that dismissal had been contemplated for performance and conduct reasons before the Claimant said she might be pregnant. The Tribunal held that the email was not privileged and did not determine the status of the note. It concluded that there had been no selective waiver of privilege in the redacted draft letter.

The appeal concerned whether the note and email were legally privileged, whether their disclosure waived privilege, and whether the draft letter formed part of the same transaction of legal advice.

1. Appeal allowed. The Employment Tribunal erred in law by failing to determine whether the note of legal advice was privileged. Its conclusion that the internal email was not privileged was perverse.

2. The note recorded legal advice concerning the Respondent's rights and liabilities in connection with dismissal. The email transmitted the substance of that advice to relevant personnel within the organisation. Both were confidential communications protected by legal advice privilege. Their disclosure in the Respondent's list of documents waived privilege in them.

3. A party may not disclose privileged material selectively where the resulting partial account would create unfairness or misunderstanding. The relevant transaction was the continuing provision of legal advice about the Claimant's dismissal and its legal implications. The advice of 25 January and the solicitors' draft letter of 2 February were not separate transactions merely because six days elapsed.

4. The Respondent had deployed the disclosed documents to advance its case on the reason for dismissal and its knowledge of the Claimant's possible pregnancy. Fairness therefore required disclosure of the linked redaction in the draft letter, which concerned the reason for dismissal. The unrelated redactions did not bear on the issues, although the Respondent agreed to remove them also.

5. Exercising the power under Employment Tribunals Act 1996, section 35(1)(a), the Appeal Tribunal substituted the correct decision. The redactions were to be removed and the complete draft letter included in the trial bundle and admitted in evidence.

• Employment Appeal Tribunal: Allowed the Claimant's appeal and substituted a decision requiring disclosure and admission of the unredacted draft dismissal letter.
• Employment Tribunal, London Central: At a closed preliminary hearing on 4 January 2019, with reasons sent on 25 February 2019, refused permission to adduce the redacted passages.