The claimant, X, worked for the respondent company, Y Ltd, until his dismissal in January 2017. The claimant has a medical condition, suffering from Type 2 Diabetes and Obstructive Sleep Apnoea.

In 2011 concerns were raised as to his performance, something which he disputed. He subsequently brought claims before an employment tribunal for disability discrimination in 2015 and raised a grievance in March 2016. A grievance hearing occurred and an outcome letter was received. A voluntary redundancy programme was later announced and X was given three months’ notice of redundancy dismissal. 
 
Following his dismissal, an anonymous document was sent to him. It was an email sent by A, a senior lawyer, to B, a lawyer assigned to the respondent company, allegedly detailing how to commit unlawful victimisation by using a redundancy programme to cloak dismissal of the claimant. In ordinary circumstances, a lawyer’s communication to a client would attract legal advice privilege and would not be admissible as evidence in legal proceedings. That protection is not absolute, as the judge in this case pointed out by reference to previous case law:

"The doctrine of legal professional privilege is rooted in the public interest, which requires that hopeless and exaggerated claims and unsound and spurious defences be so far as possible discouraged, and civil disputes so far as possible settled without resort to judicial decision. To this end it is necessary that actual and potential litigants, be they claimants or respondents, should be free to unburden themselves without reserve to their legal advisers, and their legal advisers be free to give honest and candid advice on a sound factual basis, without fear that these communications may be relied on by an opposing party if the dispute comes before the court for decision. It is the protection of confidential communications between client and legal adviser which lies at the heart of legal professional privilege …"

“…It is also well established and agreed between the parties that "advice sought or given for the purpose of effecting iniquity is not privileged…"

Following his termination and receipt of the anonymous document, the claimant brought further claims of disability discrimination, victimisation and unfair dismissal and sought to use the email as evidence that A had gone further than simply giving advice to a client on a legal issue or litigation. The claimant argued that privilege should be lost because the lawyer sought to use the redundancy process as a ruse to get around a discrimination problem.

The tribunal judge rejected the claimant’s argument that the email was a ‘strong prima facie case of iniquity’ resulting in the exclusion of legal advice privilege. The judge did not agree that the provision of advice about potential grounds of dismissal equated to advice on how to dismiss dishonestly. The judge held an allegation of discrimination was not sufficient to reach the high threshold capable of excluding legal advice privilege. X sought to appeal the decision to the EAT.

Allowing the appeal, the EAT identified two passages of the email that pointed to advice being given that redundancy could be used as a cloak for dismissing X:

‘If the Claimant were to be dismissed by proper application of a redundancy selection procedure there would have been no need to write that "there is at least a wider reorganisation and process at play that we could put this into the context of". Further in a genuine redundancy dismissal there would be no need to say "Otherwise we risk impasse and proceedings with ongoing employment with no obvious resolution".’

The EAT held the email, when properly interpreted, recorded advice on how to cloak discriminatory dismissal as a dismissal for redundancy. This resulted in a strong prima facie case of iniquity. “In my judgment a strong prima facie case has been established that what is advised is not only an attempted deception of the Claimant but also, if persisted in, deception of an Employment Tribunal in likely and anticipated legal proceedings… in my judgment the advice recorded in the email crosses the high bar of a strong prima facie case of iniquity.”
http://www.bailii.org/uk/cases/UKEAT/2018/0261_17_0908.html