In short, no. It may surprise many employers to know that HR advice from external providers/consultants does not fall under legal privilege – even if they have provided legal advice.
This means that if an employee makes a subject access request, any correspondence that contains their personal data, would be disclosable to the employee about whom the advice relates.
Privilege allows you (the employer) to withhold communications from being disclosed to a third party (for example an employee) or the court. Privilege has two forms:
- Legal advice privilege.
- Litigation privilege.
Legal advice privilege
This type of privilege protects you against the compulsory production of communications between you and your lawyers. The advice given must be within a ‘relevant legal context.’ This type of privilege protects you in relation to both contentious (disputes between two or more parties, which could involve litigation) and non-contentious (for example HR advice) matters.
So who does legal advice privilege apply to?
Members of the legal profession and lawyer’s employees
Legal privilege applies to all members of the legal profession. It also extends to legal executives and licensed conveyancers who are employed to give legal advice by a licensed body. This is because the basic purpose of privilege is to allow lawyers to exercise their professional skill and judgement freely.
It also extends to lawyer’s employees (such as paralegals or trainees) as long as they are properly supervised by a qualified solicitor. This is because their work is that of the legal department rather than their own advice. However, their advice must be in the context of the professional relationship between their solicitor employer and the client.
This relationship is more likely to exist in a law firm environment and will be more challenging to demonstrate in the case of HR consultants or similar. The mere existence of practising lawyers in the same team as a team of consultants will not mean that the advice of non-lawyer members of the team attracts legal advice privilege.
As in-house lawyers’ roles usually cover business and administration as well as law whether they are covered by legal privilege is a difficult question. It is likely that privilege will attach to their legal communications but it is doubtful that the privilege would extend to business or administration communications. Care should be taken to ensure that communications do not include both law and business/administration in the same document as confusion here could lead to loss of privilege in the whole document.
Litigation privilege only applies if litigation is anticipated or has already begun. Here, the communication must be made for the dominant purpose of using it in some way in the litigation proceedings, for example, as evidence, or to enable legal advice to be given. HR consultants, can (in certain circumstances) rely on litigation privilege however, this does not cover the day to day HR advice (unlike legal advice as outlined above).
Why does it matter?
It has always been the case that non-lawyer advisors do not attract legal privilege even if they are giving legal advice. The distinction between legal and litigation privilege is important because if it is not covered by legal advice privilege the advice may be disclosable to employees who submit subject access requests to their employers. This is something that is becoming increasingly common since the Data Protection Act 2018.
In many employee grievance situations employers obtain sensitive advice from HR advisors or consultants at the outset of the matter, long before any claim or litigation is threatened or begins. This advice would not be covered by legal privilege and so would potentially be disclosable to employees, and the court.
Some practical tips
A simple step is to obtain early legal advice from members of the legal profession. It is a common misconception that legal professionals will either be too costly, or not practical enough to provide day-to-day HR advice. The Employment & HR team at Greenaway Scott are often complimented by our clients on our commercial, practical advice from initial advice, to litigation assistance if required. We also offer our clients a retainer service, which means that for a fixed monthly fee they are entitled to day to day HR advice, together with employment law advice provided by suitably qualified legal advisors. Contact a member of our employment team on [email protected] or use our online ‘Get a Quote’ service at https://www.greenawayscott.com/get-a-quote for a no obligation quote.
The information contained in this article is for information purposes only and is not intended to constitute legal advice. For advice on employment law or for HR advice, contact our employment team at [email protected] or call us on 029 2009 5500.