Redacting comments made by a company’s lawyer on a draft dismissal letter while disclosing other privileged documents was “impermissible cherry picking”, the Employment Appeal Tribunal (EAT) has ruled.
Her Honour Judge Stacey said one of the comments, which the claimant had “somehow found it possible to read”, was: “The idea is to do enough to show we’ve not dismissed her for any discriminatory reason.”
As a result, the claimant wanted to rely on the comments at the forthcoming hearing.
Delivering judgment in Kasongo v Humanscale UK , HHJ Stacey said Tracey Kasongo was dismissed after only 11 months as marketing executive of the defendant office furniture manufacturer. She claimed she was fired because she told her manager she “was, or might be, pregnant”.
Humanscale denied this, arguing that “it had no idea that she was or might be pregnant and in any event her dismissal and other treatment complained of was entirely due to her poor performance, work attitude, attendance and lateness issues which had been ongoing throughout her employment”.
HHJ Stacey said the parties agreed that the redacted parts of the draft letter were covered by legal advice privilege.
The question was whether Humanscale had waived privilege by disclosing two earlier privileged documents from 25 January 2018 – a contemporaneous note prepared by Humanscale’s senior HR manager of a telephone call she had with its external solicitor, and an email she sent to the company’s in-house associate general counsel in New York.
Employment Judge Goodman ruled in January this year that the email from the HR manager was not covered by legal professional privilege, so there had been no “cherry picking” and Ms Kasongo could not rely on the redacted comments.
HHJ Stacey said that, although the “precise formulation of cherry picking” had been considered in a number of cases, they all involved using legally privileged material in a selective manner, to obtain a forensic advantage, leading to a risk of unfairness or misunderstanding.
She rejected Humanscale’s argument that there was a “clear distinction and difference” between the legal advice given in the two disclosed documents (sent on 25 January 2018) and the redacted wording on the draft dismissal letter on 2 February.
“They are all part of the same transaction which is the giving of the legal advice about the dismissal of the claimant. The six-day gap between the legal advice and the draft letter does not mean it is a different transaction.
“The respondent, having chosen to waive privilege in respect of the 25 January note and email, is precluded from withholding the inextricably linked redactions to the draft dismissal letter containing the lawyer’s comments concerning the dismissal.”
The judge said she could see why Humanscale had disclosed the 25 January documents: “They appear to corroborate the account that dismissal of the claimant on performance and conduct grounds was already in hand, before the date the claimant states she intimated that she might be pregnant.”
HHJ Stacey said counsel for Humanscale had conceded that both the email and earlier handwritten notes were privileged and Judge Goodman’s ruling on them was clearly “an error of law”.
She allowed the appeal and ordered the removal of the redactions and inclusion of the letter in full in the trial bundle.