Confidentiality, it is legal?
Imagine this. You get an email from your adviser whilst in the middle of a dispute with your employee, and it contains a frank assessment of the legal position; “In my view the employer's case is weak, and if this case went to trial, I would anticipate losing, with something in the region of £20k being awarded. Therefore, I suggest you offer 10k but be prepared to go to 15k if necessary.” Consider for a moment as to how it might affect your position were that private communication to be seen by the relevant employee, or of course their lawyer. Still, unless they are copied in by accident (eek!) they will never see it, will they?
It is important to recognise that communications within employment are generally prone to disclosure in lists of documents for trial, so be careful what you commit to writing, particularly in the informal medium of email. Also, remember that irrespective of the ACAS Early Conciliation protocols now in place, it’s very often after that time has passed and after the exchange of documents when the hard bargaining begins.
So, going back to the original question as to whether the problematic email must be disclosed, what is the answer? Well….. Depends. That is, it depends on the status of the author.
Many emails that go into disclosure lists are casual, offensive, inappropriate for all kinds of reasons, and defamatory. Don’t sign off with an ‘x’ and smiley faces at the bottom unless you want the world to see it. Even external (non-lawyer) consultants advice on essentially legal matters can be disclosed. The rules on both ‘litigation’ privilege and ‘legal’ privilege can be complex when applied, but as a general rule the only correspondence outside the scope of disclosure is that with a qualified lawyer, defined as a Solicitor, Barrister or Fellow of the Chartered Institute of Legal Executives.
When your legal adviser tells you that you must produce and exchange all documents relevant to the issues that does not mean just those that help your case! A failure to disclose critically important relevant documents will at least incur the wrath of the Employment Judge, and could even in worst cases invite prosecution for perverting the course of justice. - Now that would be to say the least an unhelpful distraction. Incidentally, do not be so naïve as to think that as they are ‘in house’ communications, they could not be discovered. People who are in trouble can do some ‘snooping’ before they leave, or hear something said in the office, or even have friends on the inside who brief them after they have gone. However, unless Russian roulette is your thing, then best to come clean in order to avoid ending up with a sideways sad face.