Curless v Shell International Ltd [2019] EWCA Civ 1710 (formerly X v Y Ltd)
Facts
Mr Curless was employed by Shell for 27 years until he was dismissed. He suffered from Type 2 diabetes and obstructive sleep apnoea. There had been concerns about his performance for several years. Mr Curless brought an employment tribunal claim for disability discrimination and also raised a grievance. A few months later, Shell announced a redundancy programme and made him redundant. Around this time, Mr Curless was sent anonymously a hard copy of an email from a senior Shell lawyer to a lawyer seconded to Shell advising that Mr Curless could be made redundant but might take legal action. Mr Curless brought a second claim alleging further disability discrimination, victimisation and unfair dismissal. The question arose as to whether he could rely on the leaked email or whether it was subject to legal advice privilege.
Decision
The Court of Appeal noted that Shell was seeking advice on whether and how Mr Curless might be made redundant in the course of the ongoing redundancy programme. This was the type of advice given regularly by employment lawyers and was not advice to act in an underhand or iniquitous way. This meant that legal advice privilege applied and Mr Curless could not use the leaked email to support his case.
Comment
This decision provides welcome relief for employment lawyers; the Employment Appeal Tribunal had previously held that the advice was iniquitous as it set out how a discriminatory dismissal could be cloaked as redundancy in order to avoid Mr Curless' complaints. This meant that privilege was lost.
