Are HR Consultants entitled to Litigation Privilege?

Nóra Cashe BL

July 16 2019

Are HR consultants entitled to Litigation Privilege?

In short, yes they are. The Circuit Court issued a decision last year confirming that litigation privilege extends to advice between an employer and its external HR advisors.

Litigation privilege v legal professional privilege

Litigation privilege is a subcategory of the more general legal professional privilege. People who engage lawyers are entitled to rely on legal professional privilege to refuse to disclose confidential communications with their lawyers.

Litigation privilege can exist outside of the solicitor/client relationship and may be relied upon to refuse to disclose confidential documents and communications which have been prepared for the dominant purpose of providing advice on actual or anticipated litigation.

EAT limits scope of litigation privilege attaching to HR consultant’s advice

The Employment Appeals Tribunal (EAT) (which is being replaced by the Workplace Relations Commission) examined the scope of litigation privilege attaching to advice provided by an external HR consultancy in the case of Richard Carron v Fastcom Broadband Ltd. t/a Fastcom (UD1515/2013).

The employee claimed that he was entitled to see documentation between his employer and their HR advisors, Peninsula Business Services (Ireland) Ltd (Peninsula).  The EAT noted the employer’s argument that litigation privilege should apply to all advice that “may have been given for the purposes of pending or anticipated litigation” but ultimately rejected the contention that litigation privilege attached to the advice Peninsula provided prior to the date the employee filed his claim.  

Notwithstanding the EAT’s own rules which specify that “the Tribunal does not have power to order discovery of documents or to order a party to produce documents to the other side”, the EAT ruled in favour of the employee, stating that litigation privilege should not and could not exist in this case until the date a claim had been lodged.

Circuit Court overrules EAT and extends scope of litigation privilege

The employer appealed the EAT determination to the Circuit Court which delivered its judgment in June 2018. The Circuit Court overruled the EAT in its entirety concluding that all significant communications between the employer and Peninsula prior to the employee’s filing of the claim were also privileged.

From the employer’s perspective, this was an important victory as it allowed it to rely on litigation privilege to refuse to disclose all advices in respect of the employee’s grievance and redundancy processes.

Value of HR consultancy advice

Before the Circuit Court issued this decision last year, there was a lack of legal precedent on the scope of litigation privilege. As Circuit Court decisions are not widely reported, commentary on this important development has also been limited.

The Circuit Court decision to extend the scope of litigation privilege attaching to advice given by HR consultants is a welcome clarification of the law that underlines the value of HR consultancy advice in contentious employment matters.

Need help with a difficult workplace scenario?

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