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May 2013 - Why HR Consultants should carry a health warning

By Gill Brown, Director and solicitor, specialising in Employment Law

Are you using an external HR consultant to advise you on employment issues that may result in an Employment Tribunal claim being brought?  If so, you need to be aware of a new ruling by the Supreme Court which confirms that legal advice privilege only protects lawyers’ advice.

How this may affect your business

Parties to an employment tribunal case are normally required to disclose to each other all the documents they have that are relevant to the dispute.  An important exception to this rule is ‘privileged’ documents: that is, communications with their lawyers for the purposes of legal advice (‘legal professional privilege’) and communications or documents created for the purposes of pursuing or defending the claim (‘litigation privilege’).

Legal advice privilege protects communications between a company and their lawyer, provided they are confidential and written to or by the lawyer in his or her professional capacity for the purpose of giving or obtaining legal advice.  Litigation privilege protects confidential communications whose dominant purpose is actual or contemplated litigation and applies to communications with third parties, including employment consultants, so long as they are made in contemplation of legal proceedings.

So for example, if a company seeks advice from their lawyer when an employee has first made a request for reasonable adjustments and the company asks whether it has to provide such adjustments or whether they can just dismiss as the employee cannot do the job anymore.  The lawyer sends the company a letter of advice setting out the procedure they can follow to terminate the employee’s employment whilst minimizing the litigation risk.  This written advice would be privileged and therefore non-disclosable in any subsequent tribunal proceedings. However, if the company dismissed or treated someone in a discriminatory manner under the advice of an external HR consultant for example, rather than a qualified lawyer, when you reach the disclosure stage of proceedings you will be required to disclose these communications.  The effect of this would inevitably result in a successful claim being brought against the company and in some cases significant compensation being awarded.

At Phillips Solicitors our advice is always protected and we can offer our clients the best legal solutions for their employment problems.  We pride ourselves on being completely transparent when it comes to our fees and in most cases can offer fixed fee pricing for the specific work we undertake.

If you have an employment issue that could result in a dispute, call or email one of our employment lawyers today to find out more:

Gll Brown  D/L01256 854605  email: gbrown@phillips-law.co.uk
Karen Bristow  D/L01256 854670  email: kbristow@phillips-law.co.uk