08-07-2008
Striking Blow Against Employers Freedom to Choose
The Employment Appeal Tribunal handed down a decision today which strikes a blow at the ability for employers to choose where they take their legal advice.
The employer in question took advice from an HR Consultant (and within this category we would include insurance products such as Peninsular, Citation, Mentor). In that advice the consultant gave an opinion as to the status of the employee.
Normally, and always when dealing with a solicitor, this would be classed as “privileged” and therefore not something that a Court is allowed to consider.
Clearly, the advantage of the rule of privilege is that employers are free to take advice and understand their situation without fear of recrimination with that advice being used against them at a later date.
However, in this case in a startling decision the EAT has ruled that advice obtained from non solicitors is not privileged and therefore liable to be disclosed.
I have to say that there are number of cases where initial legal opinion is not favourable to the employer as it highlights the employers weaknesses but if this can be disclosed as an admission at a later date (where the employer is not using a solicitor) then this will severely curtail the employers ability to take proper advice from consultants on matters of great importance.
This has got to be a bad thing as it reduces the available options for an employer in terms of legal advice and, undermines what in my opinion has been a very valuable resource to employers in the form of HR Consultants.
This therefore effectively ties employers to using qualified solicitors on matters where the advice may give an opinion that is detrimental to the employer if it is not protected from disclosure from the Courts.
More details will be available in due course.
The employer in question took advice from an HR Consultant (and within this category we would include insurance products such as Peninsular, Citation, Mentor). In that advice the consultant gave an opinion as to the status of the employee.
Normally, and always when dealing with a solicitor, this would be classed as “privileged” and therefore not something that a Court is allowed to consider.
Clearly, the advantage of the rule of privilege is that employers are free to take advice and understand their situation without fear of recrimination with that advice being used against them at a later date.
However, in this case in a startling decision the EAT has ruled that advice obtained from non solicitors is not privileged and therefore liable to be disclosed.
I have to say that there are number of cases where initial legal opinion is not favourable to the employer as it highlights the employers weaknesses but if this can be disclosed as an admission at a later date (where the employer is not using a solicitor) then this will severely curtail the employers ability to take proper advice from consultants on matters of great importance.
This has got to be a bad thing as it reduces the available options for an employer in terms of legal advice and, undermines what in my opinion has been a very valuable resource to employers in the form of HR Consultants.
This therefore effectively ties employers to using qualified solicitors on matters where the advice may give an opinion that is detrimental to the employer if it is not protected from disclosure from the Courts.
More details will be available in due course.
