Discussion of how to ‘manage out’ man bringing discrimination claim not allowed into evidence
The Court of Appeal has taken a stand on behalf of lawyers caught gossiping about live cases during after work drinks, ruling that incriminating pub chat is legally privileged.
The banter-friendly judgment came about after an in-house lawyer for Shell, Michael Curless, allegedly overheard solicitors acting for the oil giant discussing how to “manage him out”.
Curless, who is suing Shell for disability discrimination, persuaded the Employment Appeal Tribunal that the company could not claim legal advice privilege for the overheard conversation.
But appeal judges have decided that Curless could not draw upon the conversation, or a leaked email discussing his case, in his discrimination claim.
Curless, a long-time Shell employee, suffers from diabetes and sleep apnoea. He first raised a disability discrimination claim in 2015 after getting in trouble for poor performance at work.
While the discrimination claim was ongoing, Shell launched a round of redundancies. It was at this juncture that Curless claimed to have overheard two solicitors talking about him in the Old Bank of England pub at the bottom of Chancery Lane:
“He overheard a conversation between two people, who he believes to have been lawyers from Lewis Silkin. They mentioned a senior lawyer at [Shell] who had commenced a disability discrimination claim in the Employment Tribunal. The claimant believes that they were referring to him. They said that this individual’s ‘days are numbered’, because his managers had said that his Employment Tribunal claim was to be handled firmly, and because [Shell] planned to use the context of a redundancy exercise to terminate his employment purportedly by reason of redundancy.”
The Old Bank of England, which has four stars on TripAdvisor, is across the road from Lewis Silkin’s office.
Adding to Curless’s suspicions, he was anonymously sent an email about him from a Shell lawyer to a Lewis Silkin solicitor. It discussed how he could be offered voluntary severance or made redundant despite his ongoing discrimination claim:
“If done with appropriate safeguards and in the right circumstances, while there is always the risk he would argue unfairness/discrimination, there is at least a wider reorganisation and process at play that we could put this into the context of. I felt in the circumstances this is definitely worth considering even if there is the inevitable degree of legal risk which we would try to mitigate.”
Curless sued again, alleging that Shell had “relied on a planned re-organisation of its in-house legal department as a pretext by which to terminate his employment by way of redundancy”.
The issue in the Court of Appeal was whether Shell could claim legal advice privilege over the email and the pub conversation.
The court concluded that the email contained “the sort of advice which employment lawyers give ‘day in, day out’… we do not agree that this was advice to act in an underhand or iniquitous way”.
Commenting on the case, employment law barrister Jason Braier said “some might see that construction of the email as a tad charitable”.
He added that “solicitors would be well advised to make clear they’re dealing with litigation risks of a genuine redundancy situation rather than considering how good an opportunity this is to manage out an irritant employee”.
The Court of Appeal went on to find that the overheard pub conversation couldn’t be used to put a negative spin on the email. Its judgment, written by Sir Terence Etherton and two other top judges, said that “the advice in the email cannot be tainted by a conversation involving gossip from someone else after the event”.