For June 2020, we have asked the employment team at Tughans to provide practical answers to unusual, sensitive or complex work-related queries. We call this feature “How do I handle it?”

The articles are aimed at HR professionals and other managers who may need to deal from time to time with the less common place disputes at work; issues that may, if handled incorrectly, lead to claims of discrimination or constructive dismissal or some other serious difficulty.

I am a HR Business Partner dealing with a highly contentious grievance appeal from an employee who alleges that they have been subjected to sexual harassment by a colleague. I have become aware of several messages between a junior team member and the external adviser we used to conduct the grievance hearing, which contain derogatory remarks about the complainant’s appearance. The employee has raised a subject access request alongside her appeal, but I do not want to provide her with the confidential advice we have received or details of these comments. How do I handle it?

The dread of discovering damaging emails and messages is certainly shared by HR professionals and lawyers alike. What might have been intended as a light-hearted remark can result in serious consequences when read by the wrong person or worse, a Tribunal judge. You will need to take a number of matters into consideration.

Your first consideration should be the status of the adviser and their correspondence with you. If your adviser is a practicing solicitor, any legal advice they have provided to you about this matter will be covered by legal advice privilege. This means that it will be exempt from disclosure under the complainant’s subject access request and would not be discoverable as part of any later legal proceedings. However, this protection only covers legal advice which has been requested and given and will not necessarily cover derogatory remarks about the complainant, unless they are embedded as part of this legal advice.

If your adviser is not a solicitor, their advice cannot attract legal advice privilege. This can become a damaging issue where an external adviser has made comments or recommendations which could prejudice your position in any later legal proceedings, as appears to be the case here. As legal advice privilege does not apply, the advice is potentially disclosable under the subject access request. You should carefully review the terms of the request to clarify exactly what has been requested. You should redact the documentation to remove anything out of scope, including personal data of any third party. This should allow you to redact the names and any other identifying details of the persons who sent and received the derogatory remarks, but not the remarks themselves. If a claim was brought, you might be expected to discover these messages without this redaction.

You should also consider if any of the advice received is covered by litigation privilege. This protection is attracted by any documents which are prepared for the dominant purpose of conducting or assisting with litigation which is ongoing, or which has a reasonable prospect of arising. This protection is wider than legal advice privilege and can be gained by advisers who are not practicing solicitors. However, it will usually only apply once an employee has brought a claim or threatened to do so. If you receive a claim from this employee or enter into early conciliation where there is a reasonable prospect that a claim will be taken, you could argue that relevant documentation is covered by litigation privilege from this point. Documents which are litigation privileged do not need to be disclosed following a subject access request or as part of legal proceedings.

Another often cited protection to withhold documents is the “without prejudice” rule. This applies to communications which are made in a genuine attempt to resolve a dispute. This rule could potentially apply to correspondence with the employee who has raised a grievance. It would not however apply to correspondence passing between your colleague and your external adviser.

Finally, you will need to consider whether these derogatory remarks have impacted on the grievance outcome reached. If you are not satisfied that the outcome reached was fair and justifiable in light of these remarks, you could use the appeal to conduct a complete re-hearing of the grievance, rather than a more limited review of the specific grounds for appeal.

Even if you decide that the derogatory remarks do not impact the grievance outcome, or not sufficiently to merit a complete re-hearing of the grievance, you must be mindful that they could be discoverable as part of any legal proceedings brought by this employee, meaning that they could eventually be referred to in a Tribunal hearing, including during cross-examination.