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Recent EAT Decision Serves as Reminder to be Careful What You Say, When, and to Whom

Were pre-litigation communications between an employee and their trade union protected by legal advice privilege?  No, because the union representatives were not qualified solicitors.

Must pre-litigation communications between an employee and their trade union therefore be disclosed in subsequent employment tribunal proceedings where the employer sought an order for specific disclosure of them?  Only those documents which are relevant and necessary to fairly dispose of the proceedings, said the EAT in the recent case of Dhanda v TSB Bank.


The Case

Mrs Dhanda was a branch manager at TSB Bank (the Bank) who was summarily dismissed following disciplinary action for gross misconduct.  During the disciplinary process and in subsequent tribunal proceedings she was represented by her trade union TSBU (the Union).

After proceedings had commenced, the Bank’s solicitors sought disclosure of all documents between Mrs Dhanda and the Union (including internal correspondence).

The Union refused on the basis of Article 8 (right to privacy of her correspondence) and Article 11 (right to join a trade union) of the European Convention on Human Rights.  Further, as none of the communications were relevant to the issues in dispute the Union claimed there were no documents to disclose.

An employment judge granted full disclosure.  However, on appeal this order was set aside. It was held that the tribunal judge had erred in ordering general disclosure of all documentation which passed between a Union and its member in respect of disciplinary issues leading to Employment Tribunal proceedings.  Disclosure of all documentation (as to allow the employer to see whether there might be such a document) was essentially “a warrant to conduct a fishing expedition”. Such disclosure should have been limited to what was both relevant and necessary to fairly dispose of the proceedings.

What Should Have Happened

Any application where disclosure is sought should identify with precision a list of disputed factual issues to which the documents sought might be relevant.  A tribunal will then inspect the documents sought, together with the list of issues, to determine whether the documents are both relevant and necessary to fairly dispose of the case.

Lessons to Learn

The upside to this case is that tribunals shouldn’t now permit blanket disclosure of all documentation available.  Such ‘fishing expeditions’ (in the hope of finding evidence), by employers or their representatives, should be strenuously resisted by employees and by those representing them.

In terms of those who employees choose to represent them, employees should bear in mind that advice from those who are not qualified lawyers (e.g. union representatives or other advisers) will not attract legal advice privilege. 

So, until the point at which “litigation is reasonably contemplated” (i.e. when litigation privilege will come into play), do be mindful of what you say in correspondence when discussing the case with your advisor.  Except where you are liaising with a qualified lawyer whom you’ve engaged to act for you (like one of the team at HRC Law, for example) this correspondence might (i.e. if it's relevant and necessary to fairly dispose of the case) become disclosable to your employer and his/her legal team.

In practice, a judge has the power to inspect any correspondence with the (non solicitor/barrister) advisor.

At HRC Law, all of our legal advisors are qualified solicitors.  We pride ourselves on speaking in plain English and on providing efficient and personable legal support to all our clients which will not be disclosable if the worst happens as a result of this case.

Whether you’re an employee or an employer looking for help with an employment dispute, we have someone here who is qualified, and would be pleased, to help you.  Please call Heena Kapadi, employment solicitor, on T: 0161 358 0540 or at: heenakapadi@hrclaw.co.uk to discuss how we might be able to do so.

©HRC Law, February 2018.   This document contains general overview information only.  It does not constitute, and should not be relied upon, as legal advice.  You should consult a suitably qualified lawyer on any specific legal problem or matter.