X v. Y Ltd (PRACTICE AND PROCEDURE - Disclosure - Striking-out dismissal) [2018] UKEAT 0261_17_0908 (9 August 2018)

X v. Y Ltd (PRACTICE AND PROCEDURE - Disclosure - Striking-out dismissal) [2018] UKEAT 0261_17_0908 (9 August 2018)

The privileged email, properly interpreted, records legal advice on how to use a redundancy process as a cloak to dismiss the Claimant for making disability discrimination complaints, amounting to a strong prima facie case of iniquity. The Employment Judge erred in his interpretation and in holding that such conduct was insufficiently serious to defeat privilege. Legal advice privilege is therefore lost for the relevant material.

Citation
[2018] UKEAT 0261_17_0908
Parties
Appellant/claimant: X; Respondent: Y Ltd
Jurisdiction
United Kingdom
Judgment Date
09 August 2018
Procedural Posture
Employment Appeal / Appeal From Employment Tribunal Preliminary Hearing Decision
Outcome
Appeal allowed
Legal Topics
Legal Advice Privilege, Iniquity Principle, Disability Discrimination, Victimisation, Redundancy Dismissal, Striking Out Pleadings, Disclosure
Employment Law Legal Advice Privilege Iniquity Principle Disability Discrimination Victimisation Redundancy Dismissal Striking Out Pleadings Disclosure

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Parties

X

Appellant/claimant

Y Ltd

Respondent

Procedural Posture

Employment Appeal / Appeal From Employment Tribunal Preliminary Hearing Decision

Legal Issues

  1. 1 Whether legal advice privilege is lost under the iniquity principle where advice is given to disguise disability discrimination as redundancy
  2. 2 Whether the Employment Judge erred in interpreting the privileged email and in the application of the iniquity principle

Ratio Decidendi

The privileged email, properly interpreted, records legal advice on how to use a redundancy process as a cloak to dismiss the Claimant for making disability discrimination complaints, amounting to a strong prima facie case of iniquity. The Employment Judge erred in his interpretation and in holding that such conduct was insufficiently serious to defeat privilege. Legal advice privilege is therefore lost for the relevant material.

Court Disposition

Appeal allowed

Orders

  • Decision of the Employment Judge striking out paragraphs 10 and 11 of section 8.2 of the Second Claim Form is set aside.