Kasongo v Humanscale UK Ltd UKEAT/0129/19

Facts

Humanscale UK Ltd dismissed Ms Kasongo when she had 11 months' service. She alleged she had told Kasongo that she was or might be pregnant two weeks before she was dismissed. She brought claims of automatically unfair dismissal and discrimination on the ground of pregnancy and maternity. Humanscale denied knowing she was pregnant and said her dismissal was because of poor performance, work attitude, attendance and lateness issues. It disclosed two documents that it said supported its case that it was already intending to dismiss her before she allegedly intimated that she might be pregnant. The first was a note made by an HR manager of a call she had with Humanscale's solicitor. The second was an email the HR manager sent to the company's in-house lawyer in New York. Both dealt with the possible dismissal of Ms Kasongo. The company also disclosed a draft dismissal letter prepared by its lawyers with the lawyer's comments redacted. Ms Kasongo sought to rely on the redacted words at the hearing.

Decision

The Employment Appeal Tribunal held that the first two documents were privileged. In disclosing them, Humanscale had waived privilege in them. However, where a party waives privilege in some documents, it will also be obliged to disclose other documents that form part of the same transaction. This is known as collateral waiver and is intended to avoid employers being able to "cherry pick" the documents they disclose, which could mislead the court and the other party. In this case, the principle applied so Humanscale also had to disclose the whole of the draft dismissal letter.

Comment

This decision is a good reminder of the principle of collateral waiver, which can often take employers by surprise. The lesson is to think very carefully before you waive privilege, as you may have to disclose other documents.