C Shawcross v SMG Europe Holdings Limited & Ors

Legal advice privilege is not displaced by the iniquity exception merely because privileged communications reveal that dismissal was likely, or because a solicitor advises on reducing the risk of an unfair-dismissal or victimisation claim. The communications must, read objectively and as a whole, disclose conduct such as fabrication, concealment or an underhand sham.

Advice to obtain a senior manager’s fresh review before a dismissal is communicated, even where dismissal is thought highly likely, remains within the ordinary scope of professional legal engagement. The meaning of the communications is a question of law and may be reconsidered by the appellate tribunal without deference to the Employment Judge.

The appellant brought Equality Act 2010 complaints, including victimisation. She alleged that her dismissal on 28 April 2023 was a detriment for raising a grievance.

On 26 April 2023 she was accidentally copied into an email chain between the first respondent and its solicitor. She sought to rely on the seven emails at the merits hearing. The respondent claimed legal advice privilege. The appellant contended that the iniquity exception applied because the emails showed a dishonest sham designed to conceal both the true decision-maker and a pre-existing dismissal decision.

Employment Judge Lancaster, sitting at Leeds, held that the exception was not established and excluded the emails. The appellant appealed from that case-management order. The central issue was whether the correspondence objectively disclosed iniquitous conduct sufficient to displace legal advice privilege.

1. Appeal dismissed. The Employment Judge made no error of law in holding that the appellant had not established the iniquity exception to legal advice privilege.

2. The interpretation of the email chain was a question of law. The EAT therefore considered it afresh, while accepting that the Judge’s directions on the scope of the exception, drawn from Al Sadeq v Dechert LLP [2024] EWCA Civ 28, were correct.

3. Read objectively and as a whole, the correspondence did not discuss fabricating a false reason for dismissal, concealing the true decision-maker, or conducting a sham process. It showed the solicitor advising on the risks of immediate dismissal and recommending that a senior manager review the position before any dismissal became final by communication to the appellant.

4. The references to the senior manager’s decision, and the later identification of him as decision-maker, did not support an inference that his involvement was a sham. A belief that dismissal was overwhelmingly likely after the review did not itself satisfy the threshold for the iniquity exception.

5. The advice was comparable to ordinary employment-law advice considered in Curless v Shell International Ltd [2020] IRLR 36 and analogous to the candid privileged instructions considered in Abbeyfield (Maidenhead) Society v Hart [2021] IRLR 932. It was within the normal scope of professional engagement. Since the first limb failed, the EAT did not decide the separate question left open in Curless.

• Employment Appeal Tribunal: dismissed the appeal and upheld Employment Judge Lancaster’s case-management order of 6 February 2025 excluding the privileged email chain.
• Employment Tribunal at Leeds: held that the iniquity exception to legal advice privilege was not established and directed that the appellant could not rely on the emails at the full hearing.