UNPROTECTED LEGAL CONVERSATIONS WITH HR CONSULTANTS
When seeking legal advice from a solicitor, a client will expect to be protected by legal privilege. This means a client will be protected against the mandatory disclosure of all types of communications between themselves and their solicitor. The benefit of this is that it reassures a client that any information they pass onto or receive from their solicitor will be in the strictest of confidence and is a principle of the upmost importance within the legal profession.
However, legal privilege will not automatically apply to all situations when advice is given, therefore, individuals must be vigilant on who they are receiving advice from.
Within the case of R (Prudential plc and another) v Special Commissioner of Income Tax and another  UKSC 1, the Supreme Court refused to extend legal privilege beyond members of the legal profession.
WHO IS CLASSED AS A LEGAL PROFESSIONAL?
Broadly speaking, a legal professional would be either a solicitor, barrister or registered foreign solicitor but would also extend to legal executives and licensed conveyancers employed to give advice by a licensed body.
The concept of legal privilege may appear to be straight forward, however, mistakes do commonly occur. Nowhere is this truer than within employment law, where companies often seek advice on employment matters from HR consultants, whom are outside the scope of those benefitted by legal privilege. The issues arise when companies seek advice from HR consultants on matters which they may regard as being non-legal.
For example, guidance on how to commence redundancy proceedings or how to deal with a grievance made by one employee against another.
Communications between the company and the consultant on this matter will not be protected by legal privilege. Therefore, should a legal claim result from these proceedings or the employee submit a Data Subject Access Request they would be entitled to see these communications.
SEEKING LEGAL ADVICE
If the company sought advice from a solicitor on these matters, the communications would not have to be disclosed to the employee under legal privilege. Therefore, companies should always be cautious who they communicate with and whenever possible, should opt to liaise with a solicitor on employment matters rather than HR consultants.
This article was supplied to TBOS by our preferred legal supplier SA Law for more insights you can visit their website here https://salaw.com/views-insights/