Email sent in error was privileged

Posted: 24th January 2014

EmailA worker has failed to convince a tribunal that he should be permitted to rely upon a solicitor’s email which was sent on to him in error.

The shop worker had launched a constructive unfair dismissal claim against his employers following a dispute over paternity leave. His employers had sought advice from a leading law firm and, prior to the worker’s resignation, the terms of that advice had inadvertently been sent to him as an attachment to an email.

In the exercise of case management powers, an Employment Tribunal (ET) refused permission for the worker to rely upon the email in support of his case on the basis that it had mistakenly been disclosed to him and was covered by legal professional privilege.

In dismissing the worker’s challenge to that decision, the Employment Appeal Tribunal (EAT) ruled that, save in exceptional cases where its waiver was required in the public interest, legal professional privilege should be treated as absolute. It was thus inappropriate to carry out a balancing exercise between the competing interests of confidentiality and the desirability of establishing the truth in litigation.

The worker had left it too late to put forward a plea that the email had, in fact, been disclosed to him deliberately and it could not be argued that it had in some way been deprived of its confidentiality by its inadvertent disclosure. The email had not been ‘deployed during proceedings’ and any reasonable person would have understood that it related to confidential legal advice.