In-house lawyer cannot rely on leaked email for discrimination claim

Old Bank of England pub: Gossipy conversation not relevant

A former senior in-house lawyer at Shell cannot rely on a leaked internal email or an overheard pub conversation in his discrimination claim against the company, the Court of Appeal has ruled.

However appeal judges rejected an oral application by Shell preventing the company and the solicitor, who have been anonymous until now, from being named.

Overturning a ruling by the Employment Appeal Tribunal (EAT), Sir Terence Etherton said the email did not include advice to “act in an underhand or iniquitous way”, meaning that it lost the protection of privilege.

The Master of the Rolls said a hard copy of the email was posted anonymously in October 2016 to Michael Curless, senior legal counsel at Shell from January 1990 until January 2017.

The email was sent by Alex Ward, managing counsel of UK employment and benefits at Shell, to Angela Gill, a lawyer at Lewis Silkin, who had “effectively been seconded” to Shell.

Ms Gill had defended Shell against an earlier claim by Mr Curless, who suffers from type 2 diabetes and obstructive sleep apnoea.

The email, sent in April 2016, referred to a conversation between Ms Ward and David Brinley, general counsel for the projects and technology business at Shell and the line manager of Mr Curless’s line manager.

Headed ‘Legally privileged and confidential”, it discussed “potential compulsory redundancies”, and in particular the situation of Mr Curless.

Ms Ward said despite the “context” of wider reorganisation, there was “always the risk he would argue unfairness/discrimination”.

Despite the “inevitable degree of legal risk which we would try and mitigate”, redundancy or voluntary severance were “definitely worth considering” to avoid “impasse” and “ongoing employment with no obvious resolution”.

Mrs Justice Slade ruled in the EAT that this amounted to advice that a genuine redundancy exercise could be used as a “cloak” to dismiss Mr Curless, and there was sufficient evidence of “iniquity” to prevent the email from being covered by legal professional privilege.

Sir Terence said the email was sent in the context of the acquisition of BG Group by Shell in February 2016, leading to a “significant reorganisation of the group’s legal department” with the loss of some jobs.

“We agree with the employment tribunal that this 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.

“We do not agree that this was advice to act in an underhand or iniquitous way.”

The Court of Appeal heard in Curless v Shell International [2019] EWCA Civ 1710 that, amid “ongoing concerns by Shell” as to his performance at work from 2011, Mr Curless submitted his first disability discrimination claim to an employment tribunal in 2015.

Following Shell’s acquisition of the BG Group, his employment was terminated by reason of redundancy, taking effect in January 2017. Two months later he made a second discrimination claim.

Along with the email, Mr Curless relied on a conversation he heard around two weeks after the email was sent in the Old Bank of England pub on Fleet Street – a well-known watering hole for lawyers, next to the Royal Courts of Justice and round the corner from Lewis Silkin’s Chancery Lane offices.

Sir Terence said Mr Curless believed he overheard a discussion between a group of lawyers at Lewis Silkin, who mentioned a senior lawyer at Shell whose “days were numbered” and who had made a disability discrimination claim. One of the men was a carrying a “Lewis Silkin notepad”.

According to Mr Curless, a female lawyer said Shell wanted his discrimination claim, which “had been ongoing for a long time”, to be handled firmly and, because of Shell’s acquisition of British Gas, there was now a “good opportunity to manage him out”.

Sir Terence said this conversation could not be used to interpret the disputed email.

“There is no evidence that the woman whose conversation Mr Curless overheard had seen the email (Ms Ward, who sent the email, provided a witness statement denying that she had been involved in the conversation if it ever took place) or what the source of her information was.

“The advice in the email cannot be tainted by a conversation involving gossip from someone else after the event.”

Sir Terence ruled that Mr Curless could not rely on the email, which remained privileged, and allowed Shell’s appeal against the ruling of the EAT. Lord Justices Lewinson and Bean contributed to the judgment.

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