Employers Beware and Prepare - Data Access Requests - Legal Advice Privilege for ‘Lawyer’s’ Advices Only

In the Employment Appeals Tribunal (EAT) claim of Richard Carron v Fastcom Broadband Limited (UD1515/2013), (being a claim of unfair dismissal) the EAT was asked to determine, as a preliminary issue, whether communications between the Respondent and its non-lawyer advisors were privileged legal advices.  The EAT determined that advice provided by a non-lawyer prior to the date of the claimant’s claim was filed with the Workplace Relations Services (WRS) are not so privileged.

The issue arose when, in response to a Data Access Request made by the Claimant pursuant to Section 4 of the Data Protection Acts 1988 – 2003 (the ‘Data Protection Acts’), the Respondent refused to furnish copies of advices it had received regarding the claimant and his employment from a reputable HR consultancy service provider.  The Respondent claimed that the advice received from its HR advisors was privileged legal advice and therefore it was not obliged to provide same in response to the Data Request.

In making its determination the EAT stated that it was clear that the respondent’s HR advisors were not primarily lawyers and cited authorities to support the argument that ‘legal advice privilege’ can only protect communications between a lawyer and client which seek or contain legal advice and that communications with a non-lawyer do not attract this protection.

In making its determination the EAT did differentiate such ‘legal advice privilege’ from ‘litigation privilege’ and accepted that privilege did attach to communications between the respondent and its advisors from the date it was notified of the complaint of unfair dismissal being made to the WRS.  This however may be of little comfort to a prudent employer seeking assistance and advice from an expert on the management of what is often a fraught and difficult relationship as more often it is the information held by the employer regarding the employee prior to making his/her the complaint that is indeed the most relevant and useful for the employee concerned.  

For further information on this topic, please contact Bríd McCoy (Partner) or your usual AMOSS contact.