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Is your employment advice really "off the record"? - the decision of X v Y, now on the record as Curless v Shell International Limited ("Shell"), in the Court of Appeal on 2 and 3 October is awaited...
Joanna Chatterton and Parissa Torabi of Fox Williams’ employment team, with Patrick Halliday of 11KBW, are acting for Mr Curless in this important case being heard in the Court of Appeal on 2 and 3 of October 2019.
The normal rule is that legal advice is “off the record” and not disclosable in litigation. There is an exception to this rule which is that if legal advice were given for the purpose of affecting an iniquity it is disclosable. But how do you define iniquity? Could advice to a corporate client from its lawyers suggesting that the client potentially commits a discriminatory act be considered to be sufficiently bad that it amounted to iniquity? This is the point that is currently being considered by the Court of Appeal.
Intrigued… so what happened?
Mr Curless had brought tribunal proceedings for disability discrimination whilst employed by Shell. He was subsequently made redundant by Shell. Following his redundancy, he received a print-out of an email marked “Legally Privileged and Confidential” anonymously in the post. The email was an exchange between two senior lawyers working for Shell which didn’t name him but referred to “the individual’” and suggested that the redundancy programme that Shell was undertaking was the ‘’best opportunity’’ to end his employment. This advice was given on the basis that “there is at least a wider reorganizational process at play that we could put this (his dismissal) into the context of…otherwise we risk impasse and proceedings with ongoing employment with no obvious resolution’’.
Mr Curless relied on the argument that the email contains advice on how to cloak unlawful victimisation by using the redundancy programme as justification for dismissal. Shell argues that even if the email does contain such advice, it remains privileged because advice on how to discriminate does not amount to iniquity.
Clearly if this email can be disclosed in his discrimination proceedings it will greatly assist Mr Curless’ case.
Did this amount to iniquity?
Iniquitous conduct occurs where a person has “gone beyond conduct which merely amounts to a civil wrong; he has indulged in sharp practice, something of an underhand nature where the circumstances required good faith, something which commercial men would say was a fraud or which the law treats as entirely contrary to public policy”. BBGP Managing General Partner Limited v Brown Global Partners  CH 296.
The EAT held that in certain circumstances acts of discrimination may be so unconscionable that they amount to conduct which is contrary to public policy and that this was the case here.
Slade J found that there was a strong prima facie case that what was advised was an attempted deception of Mr Curless but also “if persisted in, an attempt to deceive an employment tribunal in anticipated legal proceedings’’ about the real reason for Mr Curless’ dismissal.
If the Court of Appeal upholds the EAT’s decision this potentially widens the scope of the iniquity exception.
Advice which simply points out the risk of claims is one thing but this was targeted advice by a lawyer on how to manage the ongoing problem for a client, Shell, by suggesting that Shell commits a discriminatory act against Mr Curless.
It is of course very rare that a claimant gets to see any of the legal advice given to his or her employer and in practice it would be very challenging to establish a strong prima facie case of deception without seeing that advice. Nonetheless Employment lawyers will need to bear this decision in mind when committing any advice to clients in writing.
The case is being live streamed from the Court of Appeal today, see here.
We will keep you updated as to the Court of Appeal’s decision. A link to the EAT decision is attached.