Litigation privilege applies to advice from consultants and lawyers from the time litigation becomes an issueScotthorne v. Four Seasons Conservatories (UK) Ltd [2010] UKEAT 0178_10_1405 (14 May 2010) | |||
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25/06/2010
The Claimant who had allegedly been abusive towards his employer was dismissed for gross misconduct after the employer had consulted his insurer. The employee made a claim for unfair dismissal asserting that the employer had been trying to remove him for some time prior to his dismissal ostensibly for financial reasons and not for those reasons that the employer had stated. He applied to the ET for disclosure and inspection of documents that might prove his case. The decision as to whether to allow disclosure of such documents depends on whether they are subject to legal advice privilege and/or litigation privilege. Legal advice privilege could not be claimed by the Respondent as some of its insurer RBS Mentor's team are not qualified lawyers. Only advice given by a lawyer is protected by legal advice privilege. Litigation privilege starts with disciplinary proceedings which lead to a dismissal. From the time that the employer sought advice from its insurer regarding any potential litigation (of seeking to avoid litigation or assisting the Respondent in the event that litigation occurred) litigation privilege came into effect, whether or not the adviser was legally qualified or not. Judge McMullen upheld the ET Judge's order and dismissed the Claimant's appeal noting that (after Chief Constable of Lincolnshire Police v Caston [2010] IRLR 327) interference with a Case Management Decision on a matter of discretion is rare. Documents relevant to the request were read solely by Judge McMULLEN QC a procedure allowed (after New Victoria Hospital v Ryan [1993] IRLR 202 EAT) when judges are not involved in a trial but deciding issues of disclosure and inspection. Judge McMullan had decided on the relevance and moreover the necessity of the documents after the Court of Appeal decision in CIBC v Beck [2010] IRLR 740. |
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The transcript of this case follows:-
Scotthorne v. Four Seasons Conservatories (UK) Ltd [2010] UKEAT 0178_10_1405 | |||
| 2010 A disability discrimination claim under the DDA must be for actual not perceived disability - Aitken v. The Commissioner of Police of The Metropolis [2010] UKEAT 0226_09_2106 A GP's opinion on depression is valid in an employment tribunal - J v DLA Piper UK LLP [2010] UKEAT 0263_09_1506 University and College Union (UCU)backs antisemite who incited violence against jews Retirement and re-employment is a reasonable adjustment - Chief Constable of South Yorkshire Police v. Jelic [2010] UKEAT 0491_09_2904 Histadrut condemns violence, describes extent of cooperation with palestinian trade union Palestinian General Federation of Trade Unions (PGFTU) Where an employer is contemplating disciplinary action the thoroughness of the investigation needs to reflect the seriousness of the consequences to a worker - Salford Royal NHS Foundation Trust v Roldan [2010] EWCA Civ 522 Damages are not limited to the term of the breached fixed term contract (but reflect the total loss caused) - Edwards v Chesterfield Royal Hospital NHS Foundation Trust [2010] EWCA Civ 571 The disclosing of without prejudice communications - Woodward v Santander [2010] UKEAT/0250/09/ZT Criterion for awarding uplifts under the Dispute Resolution Procedures - Lawless v Print Plus [2010] UKEAT/0333/09/JOJ A local council is a single establishment thus allowing white collar workers to use manual workers as comparators - City of Edinburgh v Wilkinson & ors [2010] UKEATS/0002/09/BI A compromise agreement can be valid even though the claimant does not understand it - McWilliam & Others v Glasgow City Council When using the closed procedure for national security purposes the claimant must still be provided with the gist of the employer's case - Home Office v Tariq [2010] EWCA Civ 462 An employer can not repair a fundamental breach of contract. It is up to the employee whether to resign and claim constructive unfair dismissal. - Buckland v Bournemouth University Higher Education Corp [2010] EWCA Civ 121 A worker can not claim constructive dismissal if he is in breach of the duty of trust and confidence - Bateman & Ors v. Asda Stores Ltd [2010] UKEAT 0221_09_1102 A worker can not claim constructive dismissal if he is in breach of the duty of trust and confidence - Aberdeen City Council v McNeill [2009] UKEAT 0037_08_1011 BA dress code forbidding the open display of faith symbols was not discriminatory - Eweida v British Airways Plc [2010] EWCA Civ 80 When deciding whether to allow an amendment the lateness of the application is only one factor to be taken into account by the employment judge - Baker v The Commissioner of Police of The Metropolis [2010] UKEAT 0201_09_0502 National courts should should strike down discriminatory legislation - Seda Kücükdeveci v Swedex GmbH & Co. KG [2010] ECJCase C-555/07 Judges restrict employers' use of the illegality defence against employee unfair dismissal claims - SAN LING CHINESE MEDICINE CENTRE v LIAN WEI JI - [2010] EAT UKEAT/0370/09/ZT There is a right to legal representation at a disciplinary which might result in the loss of the right to practise a profession - G, R (on the application of) v X School & Ors [2010] EWCA Civ 1 Cabin crew spending 5% of their time in the UK were considered to have worked partly at an establishment in Great Britain. - BA v Mak EAT [2010] UKEAT/0055/09/SM The 'genuine occupational requirement' rule may apply to a maximum age for employment - Wolf v Stadt Frankfurt am Main [2010] Case C-229/08 ECJ Different dress codes do not necessarily amount to sex discrimination - Dansie v. The Commissioner of Police for The Metropolis [2009] UKEAT Certain conditions must exist for the obligation to carry out a risk assessment for a pregnant worker to arise - ONeill v. Buckinghamshire County Council [2010] UKEAT 2009 An employment tribunal may decide if a compromise decision is unenforcable - Industrious Ltd v Horizon Recruitment Ltd & Anor [2009] UKEAT Registrar claiming right to refuse to officiate at civil weddings loses religious discrimination case - Ladele v London Borough of Islington [2009] EWCA Civ 1357 A philosophical belief based on science is protected by the Employment Equality (Religion or Belief) Regulations 2003 - Grainger Plc v Nicholson [2009] UKEAT/0219/09/ZT Christian counsellor who would not help same sex couples was not discriminated against - McFarlane v Relate Avon Ltd [2009] UKEAT 0106_09_3011 Under TUPE the obligation to inform always applies, even when no measures are contemplated relating to the transfer - Cable Realisations Ltd v GMB Northern [2009] UKEAT The Court of Appeal rules on Harassment and 'Oppressive and Unacceptable' behaviour Veakins v Kier Islington Ltd [2009] EWCA Civ 1288 For s4A(3) of the DDA to apply the employer must have known (or ought to have known) that the employee was disabled and that the disability would affect him in the manner described in section 4A(1) - DWP v Alam [2009] UKEAT 0242_09_0911 A discrimination case may not proceed on the mere possibility that evidence might emerge during cross examination - ABN Amro Management Services v Hogben [2009] UKEAT 0266_09_0111 In cases of discriminatory dismissal tribunals may reduce compensation if the worker would in any event have been dismissed - Chagger v Abbey National Plc & Anor [2009] EWCA Civ 1202 |
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