Clients should be able to speak freely and honestly with their lawyers, safe in the knowledge that their confidential conversations are protected from disclosure. Likewise, lawyers need to feel confident giving frank or difficult legal advice without fear that it could later be used against their client by the opposing side. However, not all confidential communications are protected by legal professional privilege. In the public sector, where employment disputes can be high-profile and politically sensitive, understanding the boundaries of this privilege is essential.
What Is legal professional privilege?
There are two types of legal professional privilege:
- Legal advice privilege – this applies to confidential communications between a client and a qualified legal adviser (solicitor or barrister), provided that the dominant purpose of the communication is to seek or provide legal advice.
- Litigation privilege - this applies to communications made in anticipation of litigation. Importantly, the privilege belongs to the client, not the lawyer, and can be waived, intentionally, or inadvertently, by the client.
Common pitfalls
In employment matters, particularly internal investigations, grievances, and disciplinary processes, privilege is often misunderstood or assumed where it does not apply. Here are some common traps:
Copying your lawyer into correspondence
One of the most frequent misconceptions is that simply copying a lawyer into an email chain renders the communication privileged. It does not. If the lawyer is not being asked for legal advice, or if the dominant purpose of the email is administrative or strategic rather than legal, then privilege will not apply.
For example, an HR manager copying its in-house counsel into an email on a draft redundancy matrix or a performance review summary will not automatically cloak the document in privilege. The content and purpose of the communication are what matter, which will need to be carefully considered and disclosed if privilege does not apply.
In-house counsel
In-house lawyers often straddle legal and commercial roles. This dual function can blur the lines of privilege. Communications with in-house counsel will only be privileged if they are acting in their capacity as legal advisers and the dominant purpose of their role is providing legal advice.
If the in-house lawyer is contributing to business strategy or HR decision-making, those communications may not automatically be protected under legal professional privilege leaving them at risk of disclosure, for example in tribunal proceedings or as part of a subject access request. Public sector employers should be especially cautious, as internal communications may also be subject to public disclosure if caught by a Freedom of Information request.
Confidentiality
Privilege only applies to confidential communications. If advice is shared too widely within the organisation, or with third parties (such as consultants or external investigators), privilege may be lost. Employers should limit circulation of legal advice to those who “need to know” and clearly label privileged documents as such.
For example, in Scipharm Sarl v Moorfields Eye Hospital NHS Foundation Trust, the High Court held that legal advice privilege had been waived where a party had shared legal advice with a third party not within the privileged circle. The court emphasised that even where the recipient is closely involved in the matter, privilege will not apply unless the third party is acting as an agent of the client or lawyer for the purpose of obtaining legal advice.
Earlier drafts
Legal privilege does not automatically extend to earlier drafts of documents in employment litigation. If a draft was not created for the dominant purpose of legal advice or anticipated litigation, it may be disclosable, even if later versions are privileged. This can expose internal thinking, inconsistencies, or legal strategy.
For example, in University of Dundee v Chakraborty, the original grievance report had to be disclosed despite legal advice being sought. As a result of having to provide copies of both versions (i.e."before and after" legal input), it was possible to identify the changes that had been made and so the nature of the legal advice was revealed. In light of this decision, it is often advisable to take legal advice about how to keep legal and factual content separate to ensure advice remains confidential.
Inadvertent waiver
Legal privilege can be lost if confidential legal advice is shared, intentionally or not. In employment matters, this often happens when legal advice is summarised in grievance responses, meeting notes, or witness statements. Once privilege is waived, the full advice may need to be disclosed. Training HR teams on how to preserve privilege is essential to protect sensitive legal communications during internal processes and litigation.
Practical tips
In summary:
- Be purposeful with legal involvement - communications with lawyers will be privileged only when they are genuinely for the purpose of seeking legal advice.
- Clarify the role of in-house counsel - ensure in-house lawyers are acting in a legal capacity when asked to provide input. Keep legal and business input separate.
- Maintain confidentiality - share legal advice only with those who need to know. Avoid forwarding or discussing it widely, and clearly label privileged documents.
- Handle drafts carefully - keep legal advice distinct from factual or HR content and avoid mixing commentary.
- Avoid inadvertent waiver – do not summarise or reference legal advice in open documents like grievance responses or witness statements. Doing so may cause privilege to be waived in its entirety.
- Train your teams - educate HR and managers on when privilege applies and how to preserve it throughout internal processes.
