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Employment law advice from non-lawyers not afforded the same level of privilege

Barry Walsh



The Employment Appeals Tribunal (EAT) has indicated that advice given to employers by employment law advisors who are not lawyers does not enjoy the same level of legal privilege as advice given by solicitors. It highlights the risk that employers may be forced, under data protection legislation, to disclose written advice from such non-lawyer employment specialists. The matter before the EAT involved a complaint of unfair dismissal. The employer had consulted a well-known HR consultancy service (the HR Consultant) to advise them in relation to a grievance raised by the employee prior to his dismissal. The employee’s representative, in anticipation of the EAT hearing, made a data protection access request to the employer for all relevant documentation, including the written advice given by the HR Consultant.  Access to the written advice was denied by the employer who asserted “legal advice privilege”. The EAT was subsequently asked to determine whether the correspondence between the employer and the HR Consultant was afforded such protection and could be withheld from disclosure by it. The EAT considered two different types of privilege; legal advice privilege and litigation privilege.  Legal advice privilege concerns any communication between a lawyer and client for the purposes of giving legal advice. The EAT held that legal advice privilege only applies to communication between a lawyer and client and, as such, advice given by a non-lawyer is not protected.  As a result any written communications between the non-lawyer advisor and an employer is not privileged and must be disclosed to an employee where a data access request is made. This decision highlights the importance of how employers seek advice in employee dispute situations. Employers should be aware that if they choose to seek advice from a non-lawyer, the advice they receive in relation to a particular employee may have to be disclosed if a data access request is made. However, legal advice obtained from a lawyer is usually afforded privilege and therefore exempt from disclosure. A full copy of the decision can be viewed here.