In light of a recent tribunal, Guy Guinan considers whether privilege rules apply if the guidance is given by someone not legally qualified
The duty to disclose all relevant documents in proceedings before the employment tribunal plays an important part in the fair conduct of litigation. There are, however, important exceptions where communications that are ‘privileged’ will not have to be disclosed.
Communications can attract privilege in several ways, two of which are often linked; these are ‘legal advice privilege’ and ‘litigation privilege’. The first treats as confidential the advice received by the party from their solicitor, and the second treats as confidential communications made in preparation for litigation.
In Trentside Manor Care and Others v Mrs Raphael a dispute arose as to whether either of these types of privilege applied, and if so whether it would give a party grounds to refuse the other side’s request for disclosure of documents.
Mrs Raphael, a care manager at a residential home, had made a flexible working request to work four rather than five days per week because of health issues. The request had been granted on a trial basis.
There was subsequently an incident at work that involved Raphael arranging for a resident to have a different mattress and bed, the details of which she had posted in a WhatsApp group. Concerns were raised about the way in which Raphael had dealt with this and other matters; she was suspended and a disciplinary process began...
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