Mr. Myles Gilvarry, Chairman of the Sligo division of the Employment Appeals Tribunal, made an interesting preliminary decision last month relating to a preliminary point raised by the Claimant Employee’s Solicitor Brian Morgan as to whether the respondent's representatives, Peninsula Business Services (Ireland) Limited (“Peninsula”), were entitled to claim Legal Advice Privilege arising out of various advices given by them to the Respondent employer Fastcom Broadband Limited during the course of a grievance process instigated by the employee prior to the termination of his employment with the company.
The employer had invited the claimant to meetings informing him that his position was at risk. The claimant received minutes which he stated were not a true reflection of what was said at a meeting. He raised a grievance. Peninsula were advising the employer during the course of that grievance. Peninsula also represented the employer subsequently in a legal capacity at the Tribunal hearing.
The claimant's representative sought documents under the Data Protection Acts. The claimant’s representative maintained by way of preliminary submissions that Peninsula were not entitled to avail of Legal Advice Privilege in respect of any advices which were given by them to the employer during the course of the grievance and he sought copies of all documents exchanged between Peninsula and the employer during the course of that grievance process. Peninsula claimed that they were entitled to both or either Legal Advice Privilege or Litigation Privilege.
Noting that the issues of Legal Advice Privilege and Litigation Privilege, as it applies to advisors such as Peninsula, does not appear to have been fully tested in this jurisdiction, the Chairman in his determination, having observed certain documents presented in the submissions by the claimant’s representative, stated that it appeared clear that Peninsula are not primarily lawyers but are primarily consultants and advisors to employers, which advice includes an element of advice on legal matters.
For the purpose of this determination, the Tribunal accepted that Legal Advice Privilege attaches only to confidential communications between lawyer and client. Given legal advice by a non-lawyer does not appear to attract the protection of Legal Advice Privilege and accordingly Peninsula could not claim the benefit of Legal Advice Privilege in this instance.
The issue then arose as to whether Peninsula were entitled to claim Litigation Privilege. Noting the case of Miley –v- Flood  IEHC 9 489 the Chairman repeated what was stated in that case, namely that communications between a party and a non-professional agent are only privileged “if they are made both (1) in answer to inquiries made by the party with the agent for and at the request or suggestion of a solicitor, or without any such request, but for the purpose of being laid before a solicitor or counsel for the purpose of obtaining his advice or of enabling him to prosecute or defend an action, or prepare a brief; and (2) for the purpose of litigation existing or in contemplation at the time. Both these conditions must be fulfilled in order that privilege may exist.”
Noting previous case law the Chairman stated that Litigation Privilege only attached once it was obtained for the sole or dominant purpose of giving or getting legal advice for the purpose of the litigation or collecting evidence for that purpose. In the circumstances, while accepting that Litigation Privilege attached to communications between the employer and Peninsula from the time that Peninsula was notified of the claimant’s formal complaint to the Workplace Relations Service on the 29th October 2013, no such privilege attached to the employer`s communications with Peninsula prior to the date the claimant's claim was filed with the Workplace Relations Service.
Subject to any appeal, this decision could have major repercussions for all employment consultants who provide legal advice to employers in circumstances where a formal claim has not been submitted by the employee to the Workplace Relations Commission or, at minimum, where the employer has not been formally notified of a claim by the employee.
Where an employee submits a grievance in an effort to resolve a complaint over the conditions of his employment, can an employment consultant in furnishing advice to the employer during the course of that grievance process, claim at a later date where a constructive dismissal claim arises resulting from the unsuccessful resolution of the grievance, that the advice delivered to the employer at the time was for both the purpose of enabling the employer to defend a claim and for the purpose or litigation existing or in contemplation at the time? It would be very difficult for the employer and their consultants to argue this where they would have been expected at the time of the grievance to be doing everything possible to genuinely resolve the grievance and the employee - at that time - might not be considering taking a claim.