Correspondence between the Respondent and its legal adviser could not be relied upon by Claimant

Sometimes, legal advice falls into the hands of others for whom it was never intended. Legal advice privilege protects communications between a party and its legal advisor.

Material that is accidentally disclosed remains covered by LPP unless, for example, privilege has been waived or the ‘iniquity exception’ applies (so as to nullify privilege).

The ‘iniquity exception’ applies where the material under consideration shows the employer acted in an underhand or iniquitous way (for example, the employer asks his legal adviser for advice on how to concoct a fair dismissal when, in fact, they want to get rid of the employee because they have raised a whistleblowing complaint).

In Shawcross v SMG Europe Holdings Ltd [2025] EAT 92, S was dismissed by SMG on 28 April 2023. Two days earlier, she had accidentally been copied into an email chain between SMG and its legal representative, M. One of the emails had a draft dismissal letter attached to it, which had been drafted by M.

S sought to rely upon the chain of emails in support of a complaint that the dismissal was an act of victimisation. She argued that the emails fell within the ‘iniquity exception’ on the basis that they were evidence of a discussion about fabricating the reason for her dismissal.

The EAT dismissed S’s attempt to admit the material, holding that the employment judge’s self-direction on the scope of the iniquity exception was correct. Read as a whole, the correspondence did not amount to a discussion about fabricating a false position or acting in an underhand or iniquitous way. Rather the emails showed that M had offered advice as to the risk of an immediate dismissal being found to be unfair and as to the steps that could be taken to mitigate that risk.

The advice given by the solicitor was the sort of advice that employment lawyers regularly have to give to clients and was within the normal scope of professional engagement (see also Abbeyfield (Maidenhead) Society v Hart 2021 IRLR 932, EAT and Curless v Shell International Ltd 2020 ICR 431, EAT).