Partial disclosure of privileged documents was impermissible cherry picking

Partial disclosure of privileged documents was impermissible cherry picking

In Kasongo v Humanscale UK Ltd, the Employment Appeal Tribunal held that once a party has waived privilege over legal advice, it cannot cherry-pick which parts of the advice it wishes to disclose.

Communications between a party and their legal advisers are privileged, provided they are confidential and made for the purpose of obtaining or giving legal advice. Privilege can be waived at any stage in litigation, which is evident in this recent case.

Facts

The Claimant in this case, Ms Kasongo, was dismissed by Humanscale UK Ltd (“Humanscale”), on grounds of poor performance and conduct after 11 months’ service.  The Claimant alleged that she had been dismissed because she had informed Humanscale that she was pregnant. Humanscale denied any knowledge of her pregnancy and claimed that she had been dismissed for performance reasons.  She brought a claim in the Tribunal for automatically unfair dismissal and discrimination on the grounds of pregnancy and maternity.

Humanscale contested the claim, arguing that it had not been aware of the Claimant’s pregnancy and that it had dismissed her due to poor performance, attitude and attendance. To support its position, Humanscale disclosed three documents showing that Humanscale had been planning to dismiss the Claimant prior to the alleged disclosure of her pregnancy.  

  1. A telephone note of a call between Humanscale’s HR representative and its external lawyers;
  2. An email from Humanscale’s HR manager summarising the lawyer’s advice and stating that she wished to terminate the Claimant’s employment for tardiness, attendance and poor quality of work; and
  3. A draft dismissal letter that contained a number of redacted comments made by Humanscale’s lawyer. 

The Claimant managed to read the redacted comments and sought to rely on them at Tribunal.  The Tribunal had to consider whether the lawyer’s redacted comments were privileged.

The Tribunal ruled that the redacted parts of the draft dismissal letter were covered by legal professional privilege as they had been ‘inadvertently disclosed’. Consequently, the Claimant could not rely on them. The Tribunal also decided that the email was not privileged so there was no cherry picking (i.e. the use of legally privileged material in a selective way to obtain an advantage).  No finding was made in relation to the note.  The Claimant appealed to the EAT.

Decision

The EAT allowed the appeal. It held that the telephone note and email from HR were covered by legal professional privilege but that, in disclosing them, the Respondent had waived privilege in respect of them.

The EAT noted that parties to a dispute are not permitted to cherry pick.  If privilege is waived, then all documents that form part of the same ‘transaction’ must be disclosed.  

Humanscale sought to argue that the draft dismissal letter was distinct from the telephone note and email from HR so that any waiver did not extend to the dismissal letter.  It argued that it did not form part of the same ‘transaction’.  The EAT disagreed. It held that all three documents were part of the same ‘transaction’, namely, the giving of legal advice about the Claimant’s dismissal and possible legal ramifications. Any difference in time between the creation of the documents was immaterial as and Humanscale was not permitted to cherry-pick.

Comment

Employers and employees should be wary when disclosing documents in litigation and should not assume that documents will not form part of a wider ‘transaction’ when waiving privilege. Waiving privilege in some documents opens up the risk that all privileged documents and communications will need to be disclosed. 

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