and this video I want to take a look at something that is specifically of
concerned to employers now the title of my video is the problem with using HR
consultants for legal advice and it arises out of a case involving a man in
county monaghan mr. carroll against the company called fast band but I'll take a
look at the problem and identified specifically what you need to be weary
of if you are an employer right after this okay the first thing you need to
understand is there's two types of privilege that might arise in a claim or
in a litigation or in a legal action one is legal advice privilege so this is the
privilege over communication my made either to or by a lawyer during the
course of a professional legal relationship with the client so if for
example you were an employer and you're my client
I got to give you certain amount of advice you may have a problem employee
and if you do I'm going to tell you what the risks are in relation to terminating
that employees employment what ways it might be possible with the minimum of
risk or the minimum of cost to do so but all of this advice is obviously going to
be confidential between you and me that's because we have what's called
legal advice privilege excuse me was the case there last year or year
before employment involving the employment of Heelys tribunal which -
held that mr. Carroll who was the claimant against fast comp broadband
limiters the legal advice privilege only applies to the lawyer or client
relationship and consultants or representative bodies or non lawyers
were not entitled to his privilege very very briefly mr. Caron as part of his
claim for unfair dismissal along with his solicitor sauce we had a data
protection request from the employer and the Data Protection request under
Section 4 of the data relation like 1998 the blades of the employer to give the
employee all notes and records dealing with the employee so when these records
were handed over the employee and his legal adviser mr. brain were organ from
one hub discovered that any advice that the employer was given
by an employment consultant called Peninsula wasn't disclosed and when the
hearing came along in the employment Appeals Tribunal the employer and
peninsula claimed legal advice privilege mr. Morgan for mr. Caron the solicitor
for mr. Caron objected to this on the basis that Peninsula were not entitled
to this privilege legal advice privilege because they weren't lawyers Burton
solicitors or barristers their employment consultants and they are here
or consultants they do employ solicitors or barristers but the question arose as
to whether they were titled to have this privilege legal advice privilege or not
and the Employment Appeals Tribunal found that they were not entitled to
withhold this information from mr. Kerem so this as you know for you as an
employer is the quantity pose you create problems because essentially the advice
that you would have received in relation to terminating an employee is going to
be have to be handed over to the employee and his legal adviser because
it's not privileged now this case is under appeal to the circuit court and I
understand there's a similar case involving similar principles in the High
Court nevertheless is a very very important decision because if you're an
employer and there's a risk our prospect of
climent claim illegal cause of action arising from your dismissal or
termination of an employee then you need to consider where you get your legal
advice because if you get it from a hedge or consultant then it's possible
that it's not privileged and can be accessed by the employee by making a
simple section for data protection request so that's one type of privilege
or this means for employers you was an employer firstly device given by HR
consultants to use an employer may be available to a disgruntled employee once
he makes the data protection request under section 4 of the data protection
light other services provided by HR consultants would not be affected by
this decision so there's absolutely no difficulty in HR consultants providing
various other services but giving advice for giving legal advice in circumstances
where there may well be an unfair dismissal claim or perhaps even leave
the proceedings for breach of contract in that situation then the advice could
well be considered to be legal advice and may not be privileged the employee
needs to consider carefully for the employer rather that should read
employer needs to consider carefully obtaining legal advice about an
employment matter especially one which may end up in litigation or a claim
the current cases say he made mr. Kerem made a data protection request of his
employment employer in preparation for the unfair dismissal him the request
obliges the employer to give all records in electronic or paper form which
mentioned the employee that is to data subject fastcome in complying with this
request did not not hand over the advice they received from Peninsula The Hitcher
or employment law consultants did him to legal advice privilege this was
challenged by mr. Carl Allen solicitor the e8 he agreed with mr. Connolly
solicitor and they basically found that no privilege for Peninsula in respect of
legal advice given to the employer arose because Peninsula are not lawyers their
employment or HR consultants there's a second type of privilege that
is litigation advice privileged litigation advice privilege is advice
given by a lawyer - his client from preparing for radiation the e8e in this
case held that litigation advice privilege may apply to advice given by
non lawyers for example consultants or representative bodies or advisors just
to be clear about that if litigation is in prospect or pending
or in being than the the advice given by HR consultants or by Peninsula or
anybody else would be privileged it would attract the benefit of legal
litigation advice privileged but this would only apply to advice given after
the employer has been notified of a claim and a litigation is in being or
pending so everything up to that point everything up to a point where the
employee brings a claim would not be privileged because it would be legal
advice privilege it would not be litigation advice privilege because no
litigation is in being or in prospect or contemplation
litigation must be in prospect or pending in order to obtain litigation
and vise privilege there is a thing called the dominant purpose test the
dominant purpose test is a very important test for commsta claiming
litigation privilege if the documents were prepared which had as their
dominant purpose dealing with the litigation then they will have
litigation privileged I will not have to be disclosed to the other side however
if the dominant purpose for the advice for the preparation of documents is not
the litigation then those documents may have to be disclosed to the other side
which is going to seek your defense if you're an employer under the waterline
or may well not necessarily what may well seriously weaken your case and your
defense my name is Terry Gloria my details are there on the screen as you
can see and if you like this video if you find it useful you might give it a
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