Legal professional privilege can be lost if what is being discussed is “iniquitous”

Most people are familiar with the idea that legal advice is “privileged” from disclosure, i.e. that is remains private between the client and his or her legal advisers. In the United States that has become a hot issue concerning President Trump and those around him, not least his longstanding personal attorney and recent convict, Michael Cohen.

Nearer to home, the issue has been considered by the Employment Appeal Tribunal in the case of X v Y Limited.

“X” was employed by “Y” as a lawyer from January 1990 until his dismissal on 31 January 2017. X suffers from type 2 diabetes and obstructive sleep apnoea. Records showed that there were concerns about X’s performance at work from 2011. X complained that measures taken by his employer amounted to disability discrimination and/or failure to make reasonable adjustments. He raised a grievance in March 2016 and an outcome letter was issued in June 2016.

In the meantime Y announced a voluntary redundancy process. Having been unsuccessful in applying for certain roles, X was placed in a “redundancy consultation process”.

At his employment tribunal hearing the employment judge accepted that, in May 2016, X overheard a conversation at the Old Bank of England pub in Fleet Street. The conversation was the subject of a claim of legal professional privilege. X said that a group of professionally dressed people including two women in their 30s or 40s came into the pub. One mentioned a disability discrimination complaint by a senior lawyer at Y. She said that there was a good opportunity to manage X out by severance or redundancy because there was a big reorganisation under way.

In his claim X relied on the conversation to interpret an email that he was sent anonymously in late October 2016. The email had been sent by “A”, a senior lawyer, to “B”, a lawyer who had been assigned to Y. The content of the email was not read out in court at the initial tribunal hearing. X maintained that the email contained advice on how to commit unlawful victimisation by using the redundancy/restructuring programme “as a cloak to dismiss” X. Y maintained that the email was legally professionally privileged.

Y terminated the employment of X, ostensibly by reason of redundancy, by three months’ notice ending on 31 January 2017.

In the employment tribunal, Employment Judge Tsamados decided that the email “did not disclose a strong prima facie case of iniquity”. Legal professional privilege can be lost if what is being discussed in “iniquitous”, i.e. (according to the Employment Appeal Tribunal);

“…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.”

On appeal Mrs Justice Slade noted that Judge Tsamados did not take into account the conversation in the pub. She concluded that it was right not to do so because it was not authorised by Y and could not therefore assist in determining its position and because there was no contemporaneous note taken.

However, as far as the email was concerned, there were relevant background factors to be taken into account.

Can an employer impose a pay cut on financial grounds?

A recent case in the Liverpool Employment Tribunals has highlighted the risk for employers in unilaterally imposing pay cuts on employees in response to a downturn in business.

Mr Decker was a branch manager for a recruitment agency, Extra Personnel Logistics, specialising in driver recruitment for the logistics industry in Merseyside. He commenced employment in December 2008. On commencing his employment he worked 40 hours a week flexibly between 7.00 a.m. and 7.00 p.m. Monday to Friday. In July 2015 it was agreed that his working hours would be reduced to 32 per week. It was also agreed that he would be released from on call duties, other than covering holidays and emergencies.

On 20 February 2017 he was asked by the managing director, Brad Richardson, to reduce his working days from four to two (32 to 16 hours), equating to a loss of £205.95 per week. The following day Mr Richardson wrote to him, confirming the reduction to Mondays and Tuesdays only. He gave the reasons as the loss of two contracts and the industry market being quiet. The letter also informed him that the consultation period for the contract would run until 6 March, following which a meeting would take place the following day. Mr Richardson also referred to an offer of six additional hours doing sales which, although it had been declined by Mr Decker, would remain open for discussion.

On 3 March Mr Decker wrote to Mr Richardson to inform him that, due to his financial circumstances, he could not afford any reduction in his existing working hours and that he was willing to discuss matters further at the meeting on 7 March.

At the meeting Mr Richardson said that, as a result of the resignation of Mr Decker’s daughter in law (who had also been offered a reduction in working hours), he could offer a further eight hours per week. However, that was subject to him resuming on call work. Mr Decker said that he would accept the reduction from 32 to 24 hours if his day rate was increased from £102.97 to £110.00, on the basis that this would assist the employer in achieving its cost-cutting objective.

No agreement was reached at the meeting.

Can a negative reaction to a refusal to shake hands constitute discrimination on grounds of religion?

The internet is riddled with articles detailing the importance of a good handshake, but just how vital is it for the proper performance of your duties at work? A Swedish, Muslim, woman has been awarded compensation after her job interview for a role as an interpreter was terminated when, due to religious grounds she would not shake hands with her potential employer.

When the male interviewer extended his hand in greeting as is traditional in Europe, Farah Alhajeh, 24, instead placed her hand over her heart. The response was her way of greeting the interviewer in a way that also aligned with her religious beliefs.

Some Muslims avoid physical contact with members of the opposite sex (except for in cases of emergency, or when there is a ‘special relationship’ present – i.e. the individual in question is their partner or a blood relative). This is why Ms Alhajeh offered an alternate greeting – there was no such special relationship between Ms Alhajeh and her interviewer, so she placed her hand on her heart, as is commonly done by those who share the same belief.

In handing down the judgement, the Swedish Labour Court (similar to the Employment Tribunal in the United Kingdom), had to balance the employer’s interest with the individual’s right to bodily integrity and the importance for the state to maintain protection for religious freedom.

The company’s main argument hinged on the fact that it was an established workplace policy that men and women were to be treated equally, and as such they could not allow a staff member to refuse a handshake based on gender.

You leave this court without the slightest stain on your character, except…

disclosure and barringCRB checks, DBS checks or ECRCs, whatever they are called, criminal record checks have become an integral part of many employment and recruitment procedures.

The object is laudable: to protect children and vulnerable people from coming into contact from those who are unsuitable to be among them. However, a decision of the Supreme Court at the end of July has exposed an interesting aspect of enhanced checks that many people did not realise and which raises interesting questions concerning our justice system and how mere involvement in a criminal process without any finding of wrongdoing can still result in a disclosure which can call into question the suitability of the individual concerned.

The case concerned someone known as “AR” (he cannot be named for legal reasons, a qualified teacher who was found not guilty of rape in 2011 after a Crown Court trial.

Although he was found not guilty, details of the allegation and the verdict were included in his criminal records certificate. Following hearings on 21 November 2017 and 23 April 2018, Lord Carnwath delivered the judgment of the Supreme Court. The respondents were the Chief Constable of Manchester Police and the Home Secretary.

In a report into the operation of the criminal records legislation, its author Sunita Mason pointed out that there was:

“…a degree of dissatisfaction with a system that has evolved with the laudable aim of protecting vulnerable people but is now viewed by some as intrusive and an unnecessary bar to employment. There is also concern that some people may be treated as ‘guilty until proven innocent'”

As a result of her report there were amendments to the legislation including a right to request a review.

Do employers need a “healthy emails policy”?

email inboxEmployees are more connected than ever when it comes to accessing work systems and emails remotely. While advances in technology mean that employees and employers alike can benefit from flexible working arrangements, it also means that it has become increasingly hard for employees to ‘clock out’ at the end of the day. Improved accessibility can therefore be both a blessing and a burden. Employers should be mindful of the impact that being connected beyond the 9 – 5  may have on members of staff and how this may in turn effect the overall productivity of the team and the business.

A report by the Future Work Centre, based in London, found that two of the most stressful habits employees could foster were leaving emails on all day, and checking emails outside working hours – namely early in the morning and late at night. Answering correspondence outside of working hours can lead to clients and customers developing unrealistic expectations of the service that they should receive. The danger is that the bar for an appropriate response time is raised ever higher.  Constant engagement with work emails and the associated stress on employees will have a big impact on the productivity of a workforce. Britain is now the second least productive economy in the G7, behind Japan with the most productive being America, Germany and France.

The French government has taken a pro-active approach to increasing the productivity of their nation’s workers by using legislation to achieve a more desirable work/life balance.

Working in a heatwave: It ain’t half hot (at work)

ice cream So, the heatwave might finally be over. Or is it? The weather forecast hasn’t exactly been bullet-proof recently. I’ve walked to work recently sheltering from the rain under an umbrella (despite predicted 34 degree sunshine) and towed an umbrella around during a day so ice cream-meltingly warm that it was worthy of Majorca…

Whichever way, I’ve received multiple (only partially jokey) messages asking whether it is ‘too hot’ to work or whether an employer’s dress code is ‘automatically waived’ when it gets ‘too hot’.

Unfortunately, from their point of view at least, there is no maximum temperature at which employers have to crack out the ice cream (albeit this isn’t the worst thing to consider morale wise!) and/or send employees home. Instead, employers simply have to ensure they comply with their duty to safeguard employee wellbeing under Health and Safety regulations. Some methods of doing this can include ensuring there is adequate drinking water, lengthening rest breaks (or providing additional rest breaks) for employees carrying out physical activities and/or providing fans for employees in hot environments. However, there are no mandatory requirements upon employers to cool things down other than to act to avoid foreseeable health risks to staff.