Legal advice privilege and HR advisers
HR advice and legal advice are two distinct areas. One normally requires advice from a HR specialist and the the other from a lawyer. Over the years the distinction has been blurred by many HR practitioners dispensing legal advice and (more recently) lawyers offering HR advice. This has often been the source of great frustration resulting in both sides accusing the other of fishing in their pond.There is nothing wrong with lawyers providing HR advice and HR advisers giving legal advice provided they have the knowledge and experience to do so. There is however one very serious issue to bear in mind. Even if a HR adviser has the requisite legal knowledge to provide competent advice, the likelihood is that it will not be protected by what is called “legal advice privilege”(LAP). In simple terms this concept ensures that any advice given by a qualified lawyer to their client remains confidential and does not have to be disclosed in the course of legal proceedings. On the other hand, legal advice from unqualified lawyers or advisers does not attract LAP and must therefore be disclosed.Take the example of a typical redundancy exercise where it isn’t unusual for there to be candid discussions between an employer and its adviser about who it would like to retain and who it would prefer to select for redundancy. Often these communications take place by email. If an employee is dismissed and believes the decision was unfair (pre-determined for instance), those communications between the employer and their adviser would have to be disclosed during any subsequent employment tribunal proceedings if the adviser was not a qualified lawyer.We recently represented the Claimant in the case of Lingard v Leading Learners, the circumstances of which were slightly different to the above scenario. In that case although the HR adviser was not a qualified lawyer and did provide legal advice she worked within the employment team of a firm of solicitors. This meant that provided the employer was able to demonstrate she was properly supervised by qualified lawyers, the advice she gave to the employer would have been the advice of the firm or the qualified lawyers in her department and therefore protected by LAP. The fact she was not qualified would not have been an issue. Unfortunately the employer wasn’t able to submit evidence of this which resulted in the tribunal ordering that the HR adviser’s advice be disclosed to the claimant.The point to bear in mind therefore is that any legal advice obtained from an unqualified adviser such as a HR consultant or paralegal is unlikely to be privileged unless that person is part of a team supervised by qualified lawyers in accordance with solicitors’ regulatory requirements. Employers should therefore be careful when it comes to taking legal advice regarding their staff by seeking clear assurances that it is either going to be provided by a qualified lawyer or in the case of unqualified advisers, that the individual is properly supervised by qualified lawyers in accordance with solicitors’ regulatory requirements.
