The EAT went onto say in Abbeyfield (Maidenhead) Society v Hart, that the email did not fall within the iniquity exception to privilege as the suggestion was the sort of 'frank instruction' that a party may feel able to give in a privileged communication.
Hart (H) was employed by Abbeyfield (Maidenhead) Society (AMS). H was suspended in December 2016 following a workplace altercation. H was dismissed on 20 March 2017 for gross misconduct following a disciplinary hearing. H appealed against the decision to dismiss however, this was rejected by AMS on 2 May 2017.
H subsequently brought various claims against AMS in relation to their dismissal. H also made a subject access request of AMS requesting copies of his personal data. As part of the response to that subject access request, AMS provided H with copies of emails between employees of AMS and a HR consultant.
A dispute arose as to whether those emails were admissible in the employment tribunal litigation. AMS argued that some of the documents were inadmissible for disclosure as they were protected by litigation privilege. These documents included communications with HR consultants regarding requests for, and receipt of advice on how to deal with the claimant’s disciplinary case and the possibility of dismissal.
The ET agreed that most of these documents were inadmissible in the employment tribunal proceedings as they were covered by litigation privilege. However, the ET did find that one document, an email from a senior officer at AMS to a HR consultant was subject to disclosure under the iniquity principle.
The iniquity principle provides that communications which would otherwise be privileged should be disclosed where advice is sought or given with the aim of facilitating a crime or fraud. Within this email, the senior officer had stated that "H’s rudeness and gross insubordination had caused major problems and this cannot be allowed to continue any longer… H will not therefore be returning…under any circumstances.” The senior officer went on to hear H's appeal against the termination of his employment.
AMS appealed against the decision.The EAT held that the email of 17 January 2017 did not engage the iniquity principle. The EAT found that the senior officer in their email did not did not seek advice on how to act unlawfully, and the consultant did not give such advice. In fact, the consultant only advised on how to progress the disciplinary process and on the risk of that process leading to potential litigation. The EAT therefore allowed the appeal, confirming that the email was inadmissible for disclosure.
When an employee makes a subject access request, it is important to carefully review what information is disclosed in response - particularly if the disclosure potentially involves privileged communications. Information disclosed as part of a response to a subject access request could be used in an employment tribunal hearing.