Employment News: privilege, health and safety, webinar

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Hogan Lovells

Narrow escape - limited waiver of privilege decision upheld

The EAT decision in Watson v Hilary Meredith Solicitors Ltd is a reminder of the rules relating to waiver of privilege. Even when privilege in certain communications has been waived, it does not automatically follow that all privileged material has to be disclosed to the other side.

The employer was a law firm. Mr Watson, its CEO, made protected disclosures to the firm’s Chair about financial irregularities and almost immediately resigned from his employment and as a statutory director. There was no suggestion that the Chair was responsible for the irregularities. The CEO was initially placed on garden leave, although the firm attempted to persuade him to return to work to help resolve the problems. When those attempts and subsequent settlement negotiations failed, he was summarily dismissed because of his post-disclosure conduct. In the meantime he raised a grievance about his treatment. He claimed that his dismissal was because he had made a protected disclosure and automatically unfair.

The employer’s defence referred to legal advice it had received relating to the reasons for and timing of the decision to dismiss and disclosed two redacted emails containing legal advice. By doing so it waived legal advice privilege. The tribunal ordered the employer to produce unredacted copies of the emails and to disclose all documents recording the instructions given to the employer’s solicitors and advice given by them in relation to the reason for the dismissal and when the decision was taken to dismiss. However, it refused to order disclosure of all privileged material relating to the claimant’s employment and grievance as he had asked.

The tribunal dismissed Mr Watson’s claim and he appealed to the EAT, including in relation to the tribunal’s decision about disclosure. That appeal was unsuccessful, because the tribunal had applied the relevant legal principles:

  • Waiver of privilege applies to all documents or communications relating to the same issue;
  • A party cannot waive privilege in a selective way if that would be misleading or give rise to unfairness; and
  • Waiver of privilege in relation to one matter does not result in a waiver of privilege in all privileged documents.

Tribunals determine the scope of the issue in which privilege has been waived to ensure that a party does not waive privilege in a way that results in “cherry picking” and potential injustice. There was no unfairness in restricting disclosure to privileged documents that related to when and why the employer decided to dismiss. An employer did not have to disclose all privileged material simply to demonstrate that it did not relate to dismissal; if that suggestion were correct, it would never be possible to make a limited waiver of privilege.

Friction burn - employee's dismissal related to health and safety activities

An employee is protected from dismissal for carrying out designated activities in connection with preventing or reducing risks to health and safety at work. The EAT decision in Sinclair v Trackwork Ltd illustrates that the protection can extend to a situation in which friction resulting from the employee’s duties, not the duties themselves, result in dismissal.

Mr Sinclair was a Track Maintenance Supervisor who had been tasked with implementing a new system of work procedure. He had not been informed that his employer wanted to introduce the new procedures “slowly” and other employees had not been informed of the new system of work or of Mr Sinclair’s responsibility for introducing it. As a result, there was upset and friction amongst the workforce, who complained to management about Mr Sinclair’s “over-zealous” approach. The employer dismissed Mr Sinclair after two months. He brought a claim that his dismissal was related to his health and safety activities and automatically unfair. The tribunal dismissed the claim, finding that the principal reason for his dismissal was not the health and safety activities themselves, but rather that the rest of the workforce had been demoralised by Mr Sinclair’s performance of his duties.

On appeal, the EAT overturned the tribunal’s decision. The tribunal’s role was to decide whether the employee had been asked to carry out health and safety activities and whether he had or had proposed to carry out those activities. If so, the tribunal then had to decide whether carrying out the activities, or proposing to carry them out, was the principal reason for his dismissal. The scope of that protection is broad and it would be relatively unusual for an employee to lose protection because of the way they carry out their duties, as long as they were not acting unreasonably or maliciously.

The tribunal expressly found that the employee had carried out his health and safety activities diligently. The fact that this resulted in a souring of workplace relations was not properly separable from the activities themselves. Employees may often regard health and safety activities as unwelcome and it would significantly undermine the protection offered if an employer could rely on the reaction of colleagues to those activities as a reason to dismiss. In circumstances where the employee was only doing what he had been asked to do by his employer, it was not possible to conclude that his dismissal was other than for the carrying out of health and safety activities.

In case you missed it...

Our webinar last week addressed some of employers' key employment law and data privacy concerns as employees return to the workplace. Click here to watch a recording.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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