In Shawcross v SMG Europe Holdings Ltd [2025] EAT 92, the EAT considered an appeal against a case management order of the employment tribunal. The tribunal held that the appellant could not rely on email correspondence between her former employer and its legal representative to support her complaint of victimisation on the basis that the emails did not fall within the iniquity exception (see Admissibility of evidence, Q&A here).
Two days before the appellant's dismissal from the respondent company, the appellant was accidentally copied into an email chain between the respondent and its legal representative. The appellant sought to rely on the email chain as evidence in support of her victimisation claim, arguing that her dismissal was related to a previous grievance she had raised. The tribunal held that the appellant had not established that the emails were subject to the iniquity exception (ie conduct which is considered on a balance of probabilities to be fraudulent or dishonest: see Q&A here) to legal advice privilege (see Q&A here) and therefore she was not permitted to rely upon them in evidence at the full hearing of her complaints. The appellant appealed, contending that the judge erred in law in concluding that on the balance of probabilities the emails did not disclose iniquitous conduct.
The EAT dismissed the appeal. Lord Fairley considered the terms of the email chain and found that there was no mention anywhere of the appellant's grievance forming any part of the respondent's reason for dismissal. Objectively, and read as a whole, the correspondence did not amount to a discussion about fabricating a false position or acting in an underhanded or iniquitous way, amounting to a sham. At no point did the respondent suggest to its legal representative that it wished to conceal the identity of the true decision maker or fabricate an ulterior reason for dismissal. Even if all parties to that correspondence considered that there was an overwhelming likelihood that the appellant would be dismissed, the judge did not err in law in concluding that the appellant had not crossed the threshold necessary to establish the iniquity exception. Therefore, on the question of the interpretation of the email chain, the EAT held that the advice given by the respondent's solicitor was within the normal scope of professional engagement, applying Al Sadeq v Dechert LLP [2024] EWCA Civ 28. Consequently, the emails remained privileged and could not be relied on by the appellant.
For more information on legal advice privilege generally, see Admissibility of evidence/Legal advice privilege. For more information on the iniquity exception, see Admissibility of evidence/Privilege: Iniquity exception.
First published on the Employment News Service on 8 August 2025
To view our previous blogs, please visit our blog home page.
Want to view more content like this? Or view our previous features? Sign up for a free trial of our service.