Privilege in Employment Law

Privilege in Employment Law

17th February 2011

Employment Tribunal Claims will almost certainly lead to parties being confronted with evidence and opinion which they do not like or agree with, and which has potential to cause significant offence. As the majority of claims occur following the termination of employment the practical effect of such statements in the work place are usually negligible.

However, some claims may be run before an employment tribunal whilst an employee remains in their employment, for example unlawful deductions claims, breach of TUPE, and most notably discrimination claims, or where another employee is caused to be commented upon. It is foreseeable that in such circumstances an employer or a representative will state something which an employee may find disagreeable, for example it may justify a refusal or promotion on the grounds that an employee was not deemed to be sufficiently competent, or it may have decided not to up hold a complaint on the grounds that it found an employee to be disingenuous, etc.

In the event that such circumstances are made within the normal course of the employment, outside of the relevant procedure, or broadcast to a wider audience than was required to know such information (as an Employment Tribunal case would, given that it is open to the general public), such may be deemed to amount to a breach of Mutual Trust and Confidence and give rise to a claim for constructive dismissal. However, what happens where such statements are made in as part of the defence or supporting evidence within an Employment Tribunal?

The question was tested in Singh v Reading Borough Council.

On appeal the EAT confirmed the Tribunal’s decision that anything said during the course of a judicial proceeding, including an Employment Tribunal attracts an absolute legal privilege and as such was incapable of forming the basis of a claim. The logic behind this is that a party must be free to advance arguments in support of its defence, so long as they are honestly, genuinely and reasonably held, without fear from suffering adverse consequence, as to remove that would potentially leave parties exposed to claims and act as a limit the execution of justice. It therefore follows, that an employee cannot obtain any new claim, for example constructive dismissal, as a result of something which is said in the course of proceedings.

However, caution should be exercised and a distinction drawn when conducting such litigation. Whilst a claim for constructive dismissal may not arise as a result of anything that is said or implied before an employment tribunal, it is not to say that the provision of new evidence may in fact provide the Claimant with access to information and evidence upon which they were previously unaware regarding their treatment or as to how a decision was reached, and therefore claim Constructive Dismissal based upon such information. Further, this decision should not be viewed as a carte blanche for respondents to say what they like in the proceedings; a failure to make honest, genuine and reasonably held comments could be seen as an abuse of process, or as distinctly disingenuous which may in turn taint the Respondent’s evidence and lead to adverse conclusions been made by the Employment Tribunal. Further, deliberately and knowingly misleading a judicial body may have potential ramifications under criminal law.