The appellant in the case of Shawcross v SMG Europe Holdings Ltd & Ors was dismissed on 28 April 2023. Two days before her dismissal she was inadvertently copied into email correspondence between SMG Europe and their legal representative. There were seven emails in the chain which Ms Shawcross sought to rely on to support a claim of victimisation. SMG's position was that she was not entitled to rely on the emails because they were subject to legal professional privilege in the usual way that communications between a lawyer and their client are. Ms Shawcross took the position that the emails fell within the iniquity exception: that they were not privileged because they evidenced a discussion about fabricating a reason for the dismissal and the identity of the decision maker.
The Employment Judge at first instance concluded that the claimant had not established that the emails were subject to the iniquity exception. The claimant was therefore not permitted to rely on them in evidence at the full hearing of her complaints.
Ms Shawcross appealed.
The EAT upheld the decision of the Employment Tribunal Judge. There had been no error of law. Objectively when read as a whole the emails did not amount to a discussion about fabricating a false position. There was no evidence of any underhand or iniquitous conduct. Even if all the parties considered that there was an overwhelming likelihood that the appellant would be dismissed the appellant had not met the threshold to establish the iniquity exception.
The advice in the emails given by the company's solicitor was the routine sort of advice that employment lawyers regularly give to their client and fell within the scope of professional engagement. Privilege therefore applied to the advice.
The appeal was refused. Ms Shawcross will not be able to use the email chain in evidence in the full merits hearing of her claim.
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