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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 70820
Experience:  Qualified Employment Solicitor
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In litigation with ex employer; ET scheduled for January

Customer Question

In litigation with ex employer; ET scheduled for January 2021. Claims are numerous discriminations, bullying harassment, failure to follow a fair redundancy, detriment part time worker, breach of contract.
Ex employer started restructure process with no consultation (received email whilst on holiday notifying me of my part time job being consolidated to a full time job). I had to apply for this new job. I got signed off with fibromyalgia and work stress (new manager was bullying me prior to holiday. I complained and was victimised for complaining). Whilst under a fit note; I requested a reasonable adjustment to application process. Was ignored until after close of applications. 11 days after being off work, my father died. No contact from work. 1 week later I received an email composed by an external HR consultant who they newly instructed to assist them with now they called a redundancy process. First mention of redundancy or at risk. I replied to her saying I couldn't attend consultation meeting as was visiting fathers body (this could not be changed for obvious reasons and he lived*****away). I Consultation meeting was to be held whilst I was still under a fit note. No offer of reasonable adjustments given. I expected the consultation meeting to be rescheduled, it wasn't. I was sent a notification of likely redundancy instead. I then put in a grievance where I also requested a SAR.
Grievance meeting was held 2 weeks later and the outcome was upheld, although was accidentally copied into an email from HR consultant to grievance chair (and lone decision maker) changing the outcome of grievance (she didn't attend the grievance meeting).
Following this meeting a without prejudice email exchange happened (with undue pressure applied and an unmeaniful attempt at settling). This was the first time I mentioned I would be seeking legal advice.
The redundancy process was paused to deal with grievance. Because I said no to settlement offer, they unpaused the redundancy but didn't meet with me for the likely redundancy meeting (which didn't happen originally because it was paused before the meeting date). They just straight up made me redundant. An appeal was put in and acknowledged but never took place.
As part of litigation, I requested a SAR from the HR consultant. She responded supplying some documents but not all, citing litigation protection. She has chosen protection from 1st October 2019 - yet my grievance wasn't submitted until 11th October. She said they suspected I was going down the legal route (interesting that they knew my intention before I did). At what point, if she does have litigation protection, is she covered from?
When I asked for the SAR? When I submitted my grievance? When I said I would be seeking legal advice? Or when I submitted ET1? These all happened between 11th October, mid November and beginning of December - so don't know why she would choose 1st October as her protection date.
Please advice me on how to respond to her, as I know she didn't submit all documents (including the email re grievance outcome accidentally sent to me. Surely this does not have litigation protection?).
Thank you
Submitted: 9 days ago.
Category: Employment Law
Expert:  Ben Jones replied 9 days ago.

Hello, I’m Ben. It’s my pleasure to assist you today. I may also ask for some preliminary information to help me determine the legal position.

Expert:  Ben Jones replied 9 days ago.

Hi there. Can I just how long have you worked for this employer please? and what are you ideally hoping to achieve so that I can best advise?

Customer: replied 9 days ago.
Hi Ben, think we were talking yesterday. You said to repost this question up as a new question to get more clarity.
Customer: replied 9 days ago.
Just under 2 years employed. They rushed through the redundancy so I didn't hit my 2 year mark
Expert:  Ben Jones replied 9 days ago.

Yes thank you very much for doing this. Leave it with me for now; I will get back to you with my answer as soon as I can, which will be at some point today. The system will notify you when this happens. Please do not reply in the meantime as this may unnecessarily delay my response. Many thanks.

Expert:  Ben Jones replied 9 days ago.

Hi there. I have you query to hand. Please bear with me and I will get back to you at the earliest opportunity. Many thanks

Expert:  Ben Jones replied 9 days ago.

Many thanks for your patience, I am pleased to be able to continue assisting with your query now. As you may have seen from the link I provided yesterday, litigation must have either been in progress, or there must have been a reasonable prosect it will happen, for such privilege to exist. That is extremely difficult to determine and you will never get an exact point in time when it happens as it will depend on a case-by-case basis.

I would say that 1 October 2019 or probably too early in your case and you are more likely than not looking from the point you raised a formal grievance or sought legal advice as the more likely point from which litigation may have been likely to happen.

The other relevant part from yesterday’s note was this:

“The dominant purpose at the time of creation of a document or communication of its author, ….must be to use it or its contents in order to obtain legal advice, or to conduct or aid in the conduct of litigation. It will not be enough that a document happens to be relevant to later litigation if it is clear that, at the time of production, the document was commissioned for another reason, for example, a proposed business deal or a reflection of annual accounts.”

Therefore, the documents she is trying to protect under this privilege must have bene created for the purpose of obtaining legal advice or linked to the likelihood of future litigation.

And finally, this part:

“It is important to always keep in mind that there are many other types of documents or correspondence that may not necessarily be privileged. For example, any internal correspondence may not necessarily be privileged, even if it is highly confidential and potentially damaging to your case. Other documents include correspondence with and reports created for insurers, inter-company memos and reports prepared for internal purposes, for example reports on accidents for internal health and safety purposes. Board minutes discussing actions to be taken in light of legal advice received in relation to the litigation, but which does not reveal the advice itself, will not be privileged either. One further point to note is that any marked or modified copies of documents are treated as separate documents by the court, and as such particular care should be exercised with copies.”

So consider whether there could be any such documents which will not be covered under such privilege and which you should be allowed to see now.

Hopefully, I have answered your query in a way that is simple and easy to understand. If anything remains unclear, I will be more than happy to clarify it for you. In the meantime, thank you once again for using our services.

Expert:  Ben Jones replied 9 days ago.

I hope that your query has been answered to your satisfaction. I just wanted to take this opportunity to remind you that if you needed any further clarification with this query, you should not hesitate to contact me and I will be happy to help. For now, thank you for using our services.