Court Of Appeal Holds Advice On Dismissal For Redundancy Not A 'Cloak' For Dismissal On Basis Of Discrimination

The Court of Appeal has held that an email containing advice from an in-house lawyer on redundancy was not, as the EAT had found, a cloak for dismissal on the basis of discrimination (Curless v Shell International Limited [2019] EWCA Civ 1710).

The Court of Appeal agreed with the Employment Tribunal that the advice given "was the sort of advice which employment lawyers give 'day in, day out' in cases where an employer wishes to consider for redundancy an employee who (rightly or wrongly) is regarded by the employer as underperforming." This was, therefore, not advice to act in an underhand or iniquitous way.

The decision leaves open the question whether the iniquity principle, which prevents privilege from applying in some circumstances, is confined to situations involving dishonesty, or extends more widely to other circumstances which are contrary to public policy, and whether that includes the tort of discrimination.

The differing interpretations of the key email in this case demonstrate the importance of employment law advice being drafted clearly, so that there is no doubt that the advice being given is as to the options available to an employer (along with the associated risks) and cannot be misinterpreted as advice on how to "cloak" a dismissal on a discriminatory basis as something else. This is particularly so given the current uncertainty over the scope of the iniquity principle.

The case is also of interest in the Court of Appeal refusing to grant an anonymity order, even though the hearing before the Employment Tribunal was a closed hearing and an anonymity order was made by the EAT. The Court of Appeal also quoted from the email in issue, rejecting suggestions that the judge hearing the substantive dispute might be tainted by knowledge of it, commenting that judges are well used to having to exclude from their minds evidence which is inadmissible. It is not clear, however, whether the court was aware that two lay members will also hear the case and they may be less experienced in doing so.

This is the latest in a number of recent decisions emphasising the importance of open justice and the limited scope for derogations from it, and suggests anonymity orders, at Court of Appeal stage at least, will be difficult to obtain in most cases.

Background

The claimant (C) was employed by Shell International Limited (S) as a lawyer until he was dismissed on 31 January 2017. During his employment, C made allegations of disability...