Legal Privilege
by Sarah
I had a case recently where the employer was asking the employee to disclose correspondence between her and the union rep. My first thought was one of horror and that this must be covered by legal privilege. I was wrong and reminded myself of an old case New Victoria Hospital and Ryan from 1993. This is not new law but saves as an important reminder to employers out there who use the services of non-solicitors to obtain legal advice.
In the case Mrs Ryan sought disclosure of correspondence between her employer and a firm of personnel consultants containing confidential legal advice concerning her dismissal and discipline. The EAT held that this was not covered by legal professional privilege as this was restricted to advice between a solicitor or barrister and their client and could not extend to cover personnel consultants.
Thinking it through this case can have quite horrific consequences for employers using the services of personnel consultants who are not solicitors in obtaining employment law advice. I think about the phone calls from employers saying I want to get rid of X what are my options and if this was disclosed in a Tribunal. Of course my conversations with clients are covered by legal privilege, as are those of all my colleagues at PJH Law. The same cannot be said for all those who offer employment law services, as their advice is often given by non-solicitors and employers should stop and think about the consequences of them giving instructions or seeking advice when the contents are not protected.
Now there’s a reason if ever I heard one to seek advice from employment law specialists who are solicitors just like PJH Law rather than other employment law service providers. That is not to mention the personal service and commercial advice etc etc etc you get with us!
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“Now there’s a reason if ever I heard one to seek advice from employment law specialists who are solicitors just like PJH Law rather than other employment law service providers”
Or a reason to change the law and extend the scope of professional privilege. There are professional, are they not?
Richard said at March 27th, 2008 at 9:25 am
Absolutely right Richard.
As I work for a company that provides remarkably good (and indemnified) employment law advice for perhaps 60,000 employers in the UK, but which is not a firm of solicitors, the lack of privilege is a concern. Of course, what my Useful Employer represents is an alternative to using a firm of solicitors given the radical difference in pricing models between us both (depending on who you’re with, your access to us might start at about £10 per annum). The question has to be asked: will the current laws on privilege withstand the advent of Alternative Business Structures? If in five years an individual receives his divorce or employment advice from Tesco Law, but from one of their monkeys rather than a qualified solicitor, will the law on privilege really be be so stationary as to render the advice subject to disclosure? Of course not. We are entering a brave new world of legal services provision, and if you are involved in this sector then this Law21 blog post is compulsory reading:
http://law21.ca/2008/03/25/preparing-for-the-storm/
Usefully Employed said at March 28th, 2008 at 12:42 am