A privileged position – the latest on legal advice privilege

An important recent decision in the courts that may have passed you by is the Supreme Court’s decision in R (Prudential PLC and another) v Special Commissioner of Income Tax and another. This isn’t an employment case, but it is something that all employers need to be aware of – privilege.

Lawyers are often portrayed as privileged (no comment!) but this case was about the particular status of their advice, known as legal advice privilege. The concept is that if someone is taking advice, the discussions and correspondence between that person and their legal adviser cannot be disclosed. It is an age old rule that applies to protect the lawyer / client relationship and the right to take legal advice.

There is a separate rule of privilege where advice is being given in litigation (called litigation advice privilege) where the adviser does not necessarily have to be a member of the legal profession. However, this only applies where litigation is pending or existing, which often will not be the case when an employer is dealing with an employee through its internal procedures.

So why does the ruling on legal advice privilege matter? Well, the case established that the rule only applies where the legal advice is given by a member of the legal profession. It had been argued that specialist tax advice given by a firm of accountants should be given the same special status as legal advice, but the Supreme Court rejected that argument (by a majority). They said that if the rule on privilege were to be changed, it should be done by legislation.

What this means is that as things currently stand, legal advice will only be privileged if it is given by a member of the legal profession. This includes solicitors, barristers and legal executives, and those who work for law firms. Importantly, legal advice privilege does not apply to advice given by HR, either internally or by external consultants, and it will not always apply to advice given by in-house lawyers (for example, if there is doubt as to whether they are giving their advice as lawyers or as managers within the organisation). Emails, letters and notes regarding a particular employee may therefore all be disclosable in a Tribunal claim unless they are either to or from a legal adviser.

It is possible that the rule will be amended in future – the Supreme Court recommended that Parliament look at it as soon as possible. However, for the time being it is important that any advice which you don’t want to be disclosable is from a member of the legal profession. We are, of course, happy to help!

 If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.