Legal Professional Privilege: Be careful what you say

Luke Smith

Employment Law – Legal Professional Privilege: Be careful what you say to your HR consultant, you never know who may see it …

Luke Smith – Legal Assistant, Nalders Solicitors, explains:

When an employer is considering disciplinary proceedings against an employee, perhaps with a view to dismissal, the employer may take advice from their own in-house HR Department, a HR consultant or from a solicitor.  However what many employers may not realise is that, when making the decision on who to ask for advice, the distinction between those offices could turn out to be very important.

It is becoming increasingly common for savvy employees facing disciplinary proceedings or dismissal to make a ‘subject access request’ under the Data Protection Act 1988.  This means that the employer must potentially release everything they hold about that employee to them, unless certain exemptions apply.

The disclosure of any advice, information or discussions may be very damaging to the employer and very helpful to an employee looking to establish a claim against them.  The information is likely to show the thought processes of the employer, highlight any weaknesses in the procedure used and contain discussions which were never meant for the employee’s eyes.

One of the potential exemptions available to an employer under data protection legislation to avoid being under a duty to release this damaging material is that the information sought is subject to ‘legal advice privilege’.  Confidential legal advice and correspondence received from a solicitor will generally attract ‘legal advice privilege’, whereas the same advice given by an in-house HR department or HR consultant will not.  This means that advice received from a solicitor is more likely to remain confidential whereas advice received in-house or from a HR consultant is likely to have to be disclosed to the employee upon a data subject access request.   This has been confirmed by the Supreme Court.

If you are concerned about whether discussions which you may have had or are having are potentially vulnerable to disclosure, always seek expert legal advice.