Employment Consultants and Litigation Privilege

[Thanks to James Medhurst of Employment Law Advocates for providing this case summary]

The EAT (HHJ McMullen) has handed down its decision in Scotthorne v Four Seasons, which is authority for the proposition that advice given by employment consultants about how to deal with an alleged act of gross misconduct does not have to be disclosed because it is protected by litigation privilege. The reason for following a disciplinary procedure is to avoid litigation and so the dominant purpose for seeking the advice was litigation and it did not matter that the consultants were not legally qualified.

The suggestion that advice from non-qualified advisers at an earlier stage would attract legal advice privilege was said to be "fraught with difficulty" but it was found on the facts that it was not required to be disclosed in this case because it was not relevant to the claim as pleaded. Although it had been alleged that the dismissal had been concocted in response to earlier events, this was supported by no more than bare assertion.