Legal Professional Privilege - Are Communications With Your HR Adviser Protected From Disclosure?

Legal Professional Privilege (commonly abbreviated to 'LPP') is a legal right that protects your confidential and potentially sensitive documents from disclosure in legal proceedings.

Examples of privileged documents are emails or letters from you to a qualified lawyer (barrister or solicitor) asking for advice, and the written legal advice you receive.

Legal privilege can only be removed by the person who received the advice (the client).

If the evidence you want to show a tribunal is only included in a privileged document, the temptation then can be to ‘waive privilege’ and allow the tribunal to read the document. This can open the floodgates to the enforced disclosure of other privileged documents, which could be detrimental to the case.

However, a party cannot “cherry-pick” which documents it wishes to waive privilege over. To permit this would risk a party being able to present a misleading picture by waiving privilege where it helped their case.

To avoid common legal privilege pitfalls, when seeking legal advice, employers should consider the following:

• Seek advice from a qualified and practising solicitor or barrister as soon as there appears to be an issue which could give rise to legal proceedings.
• When passing on legal advice you’ve received to a colleague (e.g. forwarding advice from an external solicitor to an in-house HR Director) ensure that you either forward on the email containing the legal advice or, if you received the advice by phone, make it clear, when sending your email setting out how you’d been advised, that this is the advice given to you by your legal adviser.
• Consider very carefully whether you wish to waive legal privilege on one document – is it actually privileged? What is the reason for wishing to waive legal privilege? Is it essential that this document is disclosed? What are the potential risks?
• Advice from a HR (Human Resources) adviser (whether given in-house or by an external HR provider) even if about the law, ?is not going to be legally privileged so would be disclosable under the Subject Access Request procedure under the data protection legislation and in the employment tribunal so be mindful of this in your communications with them.
• When discussing particularly sensitive or difficult matters where you would not want your communications to be disclosable, take legal advice which is likely to be privileged.