In Curless v Shell International Limited, the Court of Appeal rejected an underperforming employee’s argument that communications between the employer and its legal advisers referring to the possibility of dismissing the employee as redundant had been underhand and should therefore lose the protection of legal advice privilege. Below, we consider the judgment and its implications for employers.
Legal advice privilege applies to confidential communications between a client and their lawyer which have been created for the purpose of giving or receiving legal advice about what should prudently and sensibly be done in the relevant legal context.
However, legal advice privilege will be lost where advice has been given in an underhand or iniquitous way (i.e. where communications are for any “dishonest” purpose, including “sham contrivances”). This is known as the “iniquity rule”.
Mr Curless, who has Type 2 Diabetes and Obstructive Sleep Apnoea, worked for Shell from January 1990 to January 2017. From 2011, Shell had various concerns about Mr Curless’ performance as Senior Legal Counsel (for example, his ability to meet deadlines and general standard of work, which had resulted in low individual performance ratings). Mr Curless issued an employment tribunal claim in August 2015 claiming unlawful disability discrimination and/or failure to make reasonable adjustments. He also later raised an internal grievance, which was not upheld.
In April 2016, Shell launched a voluntary redundancy programme. In November 2016 Mr Curless was dismissed for redundancy on three months’ notice. Around this time, Mr Curless received an email print-out via post from an anonymous sender which showed confidential communications between a senior lawyer at Shell and another lawyer. Separately, he also alleged to have overheard a conversation in a pub on Fleet Street between two professionally dressed women which seemed to have been about him. Mr Curless concluded from these communications that Shell had been taking advice on how the group-wide redundancy programme could be used as a pretext or cloak for dismissing him due to his disability and the claims he had raised.
Following his dismissal, Mr Curless brought a second tribunal claim, alleging further disability discrimination, victimisation and unfair dismissal. Mr Curless alleged that the legal advice given had been underhand and should therefore lose the protection of legal advice privilege in accordance with the iniquity rule. He argued that Shell’s conduct amounted to unlawful disability discrimination and victimisation as his dismissal for redundancy was essentially a “sham”.
Tribunal and EAT judgments
The Employment Tribunal concluded that both the email of advice and the alleged conversation in the pub attracted legal privilege and Mr Curless therefore could not rely on them as evidence in support of his claims.
Allowing Mr Curless’ appeal, the EAT disagreed with the ET, finding that the email indicated a strong case of iniquity which meant that legal advice privilege did not apply.
Court of Appeal judgment
The Court of Appeal upheld Shell’s appeal, concluding that the legal advice provided in the email was the sort of advice employment lawyers give “day in, day out” where an employer is considering dismissing an underperforming employee for redundancy. Shell had been looking for legal advice about whether Mr Curless could be either offered voluntary severance or dismissed on the grounds of redundancy in the context of its group-wide reorganisation and needed to understand how this could be done “with appropriate safeguards and in the right circumstances”, taking into account the potential risks of each possible course of action. The Court did not consider the advice to have been given in an underhand or iniquitous way.
Similarly, the conversation Mr Curless overheard in a pub, while unpalatable, did not change the fact that legal privilege attached to the original email advice (so Mr Curless could not use it in support of his case).
The Court of Appeal’s decision in this case will come as a relief for lawyers – and employers – as it reinforces the principle of legal privilege and makes clear that exceptions to it will not be made lightly. Employers undertaking restructuring or redundancy programmes are often faced with difficult decisions about how to deal with employees who are not performing well or who have previously raised allegations of discrimination. The judgment in this case should reassure them that, when seeking legal advice on how best to handle these complex issues, such advice will remain confidential and protected by privilege.
How Make UK can help
Our new national seminar, “Redundancies: Top tips to tackle the trickiest issues (or, ideally, avoid them altogether)”, is running during November at various locations across the UK. We will address some of the trickiest issues that can arise in a redundancy exercise through a series of case studies and interactive exercises, as well as realistic options for side-stepping redundancies.
Your booking will include:
• A confidential, one-to-one consultation with a Make UK redundancy expert to discuss specific questions on difficult issues you're facing or want to avoid (to be arranged at a time that is convenient for you).
• A training pack for line managers providing basic guidance on handling redundancies with dignity, minimising legal risks and keeping the process on track.
• A practical guide on measures and options aimed at avoiding redundancies while still achieving cost savings and maintaining an effective and cohesive workforce.
For more information and to book your place, click here.
Make UK’s expert advisers can also provide specialist and confidential guidance on restructuring, redundancies and other HR and legal issues as they arise. Contact us by email or on 0808 168 5874 for more information.