EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Richard Carron – claimant UD1515/2013
against
Fastcom Broadband Limited t/a Fastcom – respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr M. Gilvarry
Members: Mr D. Morrison
Mr T.J. Gill
heard this appeal at Sligo on 2nd September and 13th November 2015
Representation:
Claimant: Mr Brian Morgan of Morgan McManus Solicitors,
The Diamond, Clones, Co. Monaghan
Respondent: Mr Brian Dolan of Peninsula Business Services (Ireland) Limited,
Unit 3 Ground Floor Block S, East Point Business Park, Dublin 3
The determination of the Tribunal was as follows:-
The claimant’s representative gave the Tribunal some background information. On 19th March 2011 the claimant met both directors of the respondent company. They told him things were not working and that they would pay him to the end of April. The matter seemed to be resolved.
However the claimant instituted a grievance. The present respondent representative was advising them at that time. On 21st March 2011 the claimant attended a performance meeting and this meeting did not deal with his employment. The claimant received minutes of this meeting that in his view are not a true reflection of what was said.
A second meeting was held where the claimant was informed that his position was at risk.
When the claimant consulted with his representative he said that he believed that the respondent had recorded the first meeting. The claimant’s representative asked for the production of documents and the recording of the meeting. A complaint had been made to the Data Commissioner.
In the view of the claimant’s representative two issues arise. First that of qualified privilege and secondly that of litigation privilege arise. He submitted that in this case qualified privilege does not arise.
The respondent’s representative replied by stating that no recording existed of the meeting on 21st March 2011 and therefore such a recording cannot be produced. The claimant’s grievance was dealt with by the HR officer who worked in the same office as the two directors. It appears that there are no notes of the meetings and no memorandum of the investigation of the grievance. Nevertheless the respondent disagrees with the suggestion the meetings were informal considering the claimant considered himself dismissed.
Determination:
The Tribunal carefully considered the submissions of both parties on the preliminary issue. The Tribunal is a creature of statute, without any inherent powers apart those conferred by statute. It can only apply the law as it currently stands. The issues of Legal Advice privilege and Litigation Privilege have been, to an extent, overtaken by more recent developments in practise and the law in this area as it applies to advisors such as Peninsula does not appear to have been fully tested in this jurisdiction.
2. The Claimant has made a claim of unfair dismissal against his former employers. In the course of preparation for these proceedings the Claimant’s Representative made a request to the Respondent to disclose certain documentation under the provisions of the Data Protection Act. These were refused.
3. As a preliminary issue when the matter was first set down for hearing the Claimant’s Representative requested a ruling from the Tribunal that the communications between the Respondent and their Representatives Peninsula Business Services (Ireland) Limited were not subject to either qualified privilege, legal advice privilege or litigation privilege and were consequently subject to the Data Protection Acts and could be required to be produced to the Tribunal in the course of the hearing of the case. The preliminary issue therefore to be determined is whether the communications between the Respondent and their Representatives Peninsula Business Services (Ireland) Limited (hereafter referred to as “Peninsula”) were privileged either on the basis of legal advice privilege or litigation privilege or otherwise, and therefore not subject to the Data Protection Acts and not appropriate to be called for by a Tribunal to be produced at the hearing of the action.
4. A large number of authorities were furnished and extensive legal submissions have been made by both the Claimant and the Respondent. However it is clear that there is a lack of legal precedent directly on the point being sought to be determined by the parties.
5. The first thing for the Tribunal to consider is the status of the Respondent’s representatives who are Peninsula Business Services (Ireland) Limited. They self refer in the Submission presented as “legal advisors”. This is disputed by the Claimant who in his Submission at paragraph 12 points out that they self describe themselves on their website as “Employee Assistant Specialists”. The Respondent’s Submission states that the service provided by Peninsula has other elements including “provision of contracts and employment documentation in respect of employment law and representation before the various employment fora” It is accepted by the Tribunal that Peninsula regularly appear and expertly represent Employers before the Employment Appeals Tribunal and have done for a significant period of time. The question however arises are Peninsula “legal advisors” The position is somewhat complicated by the fact that the representative attending the hearing from Peninsula Business Services (Ireland) Limited is in fact a qualified Solicitor. However it is common case that his involvement with the case on behalf of the Respondent post dated the issuing of complaint under the Unfair Dismissals Act.
6. In the judgment of Smyth J. in Shell E. & P. Ireland Limited v.
McGrath (No. 2) [2007] 2 I.R. 574, the Judge stated-“The rationale for legal professional privilege is to ensure that a client may fully instruct his lawyer freely and openly safe in the knowledge that what he says to his lawyer in confidence will never be revealed without his consent”
It seems clear that Peninsula Business Services (Ireland) Limited are not primarily lawyers. They are primarily consultants and advisors to employers which advice includes an element of advice on legal matters. In the English case of Three Rivers District Council –v- Governor and Company of the Bank of England (No. 6) [2005] 1 A.C.610 Scott L.J stated as follows; “24. First, legal advice privilege arises out of a relationship of confidence between lawyer and client. Unless the communication or document for which privilege is sought is a confidential one there can be no question of legal advice privilege arising. The confidential character of the communication or document is not by itself enough to enable privilege to be claimed but it is an essential requirement” (emphasis added).
The authorities are to the effect that legal advice privilege is privilege over communication made either to or by a lawyer during the course of a professional legal relationship. The definition of a lawyer for this purpose includes Solicitors, Barristers, In-House Lawyers, Foreign Lawyers and the Attorney General see (“Evidence” Declan McGrath Second Ed), Pages 663 and 664). For the purposes of this Determination the Tribunal accepts that legal advice privilege attaches only to such communications between lawyer and client and vice versa which seek or contain legal advice. Giving legal advice by a non-lawyer does not appear to attract the protection of legal advice privilege.
7. Legal advice privilege can be differentiated however from litigation privilege. In Miley –v- Flood [2001] IEHC 9, 1 ILRM 489 it was stated ““Litigation privilege can extend to communications between a lawyer or the lawyer's client and a third party where they are prepared for the purposes of litigation. Communications between a party and a non-professional agent or employee or third party are only privileged if they are made both (1) in answer to inquiries made by the party with the agent for and at the request or suggestion of his solicitor, or without any such request, but for the purpose of being laid before a solicitor or counsel for the purpose of obtaining his advice or of enabling him to prosecute or defend an action, or prepare a brief; and (2) for the purposes of litigation existing or in contemplation at the time. Both these conditions must be fulfilled in order that privilege may exist.” (Halsburys Laws of England, Vol. 11 (2009) paragraph 565) (Emphasis added).
8. “Once litigation is in prospect or pending, communications between a client and his solicitor or agent or between one of them and a third party is privileged if it comes into existence for the sole or dominant purpose of giving or getting legal advice for the purpose of the litigation or collecting evidence for that purpose.” Flannery v Catharsis Technology [2015] IEHC 714 per McGovern J. The Tribunal accepts that privilege attaches to the communications between the respondent and their advisors Peninsula Business Services (Ireland) Limited from the time when they were notified of the complaint of unfair dismissal being made to the Workplace Relations Service on the 29th of October, 2013.
9. The Respondent seeks to argue that privilege applies because their advice may have been given for the purposes of pending or anticipated litigation. The Tribunal determines that no such privilege attaches to their communications with Peninsula, and that communications between Peninsula and the respondent prior to the date the claimants claim was filed with the Workplace Relations Service are not privileged.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)