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Legal advice privilege and HR advisers

The decision of the employment tribunal in Lingard v Leading Learners ET/2401985/17 will impact on assertions of legal advice privilege (LAP) in the context of HR consultants employed by a law firm. In this blog, Nicholas Siddall (who acted for the claimant) analyses the decision and its implications.

The facts

At an earlier preliminary hearing it had been determined that litigation privilege did not apply up to a certain date. In the light of that finding, the respondent sought to assert LAP as regards communications between it and an HR adviser predating that date. The complication was that the HR adviser was an employee of a firm of solicitors. The solicitors in question offered their clients what they described as a comprehensive package where they would provide HR advice and also specialist employment advice on the basis of a single annual retainer. The issue was the effect, if any, that this had on the ability of the respondent to assert LAP.

The previous law

It is settled law that LAP is the exclusive purview of lawyers (R (Prudential plc and another) v Special Commissioner of Income Tax and another [2013] 2 AC 185). Thus a “pure” HR consultant cannot be the basis of a valid assertion of LAP (New Victoria Hospital v Ryan [1993] ICR 201). It is also settled law that the onus is on the party seeking to assert privilege (Rawlinson and Hunter Trustees SA v Akers [2014] EWCA Civ 136).

The issue

The issue is whether the Ryan rule was to be relaxed when the HR consultant worked in a legal setting. This was a point on which there is no previous authority.

The employment tribunal’s judgment

The employment tribunal held that LAP was not available to the respondent. This was principally on the basis that the respondent had not called evidence to address the precise operation of the department in which the HR consultant worked and the degree of supervision to which she was subject.

However on a point of wider application, the employment tribunal accepted that the correct statement of the position in law as to whether LAP applied was that found in Phipson on Evidence (19th ed):

“Practical problems may arise where staff who are not legally qualified are involved in the giving of advice in a department supervised by qualified lawyers. The unqualified staff may be paralegals working supervised in a department. So long as the paralegals are properly supervised in accordance with solicitors’ regulatory requirements, the advice will be the advice of the firm or the legal department rather than the advice of the paralegals themselves and thus will be privileged. Or the department may be a combination of accountants and lawyers giving tax advice. In this example, the issue is whether the advice is sought and obtained from lawyers professionally consulted in that capacity, or from accountants. In the former case, it is privileged, in the latter not. That means whether the advice is privileged is likely to be determined by an analysis of the regulatory and professional organisation of the department.” (Paragraphs 23-38.)

Conclusions

In circumstances where a law firm offers an HR function, the availability of LAP will depend on the regulatory and professional organisation of the department. This is an issue which parties must be able to evidence in order to make a viable assertion of LAP.

Littleton Nicholas Siddall

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