Mr Curless was employed by Shell International Ltd as a Lawyer from 30 January 1990 until his dismissal for redundancy on 21 January 2017. He suffered from Type 2 Diabetes and Obstructive Sleep Apnoea.
The following findings were made by the employment judge:
There had been concerns about Mr Curless’s work since 2011.
In August 2015, Mr Curless issued tribunal proceedings arguing that Shell had taken measures amounting to disability discrimination and/or had failed to make reasonable adjustments.
In January 2016, Mr Curless raised a grievance that he had been subjected to disability discrimination. The grievance was heard in March, and Mr Curless received an outcome letter in June 2016.
In April 2016, Shell started a redundancy programme. After Mr Curless applied unsuccessfully for certain roles, he was placed in a redundancy consultation process. He was dismissed by reason of redundancy on 31 January 2017.
In March 2017, Mr Curless issued further tribunal proceedings for disability discrimination, victimisation and unfair dismissal.
In his claim, Mr Curless relied on a copy of an e-mail of 29 April which was marked ‘Legally Privileged and Confidential’. The email was sent on 29 April 2016 by A, a senior lawyer, to B, a lawyer assigned to the Respondent. Mr Curless argued that it contained advice on how to cloak an act of unlawful victimisation by using the redundancy programme to dismiss him. This interpretation was influenced by a conversation Mr Curless had overheard between two professionally dressed women in a pub in May 2016, one of whom said that she was dealing with a complaint of disability discrimination by a senior lawyer at Shell. Mr Curless surmised that these were lawyers acting for Shell and believed that they were referring to him.
The 29 April email:
Spoke to David Brinley [In-house General Counsel with Shell].
It looks as though there are both opportunities for SVS [Selective Voluntary Severance] conversations (as parts of the wider UK announcements and done consistently with others) and opportunities for potential compulsory redundancies. On a strictly confidential basis they are looking at reducing the overall number of senior C &P lawyer roles they have, both as part of the integration and generally.
I told him this is their best opportunity to consider carefully how such processes could be applies [sic] across the board to the UK legal population including the individual. 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. Otherwise we risk impasse and proceedings with ongoing employment with no obvious resolution. Happy to discuss next week.
Mr Curless argued that the 29 April email fell foul of the iniquity principle and Shell could not claim that it was privileged. Shell argued that, even if Mr Curless’s interpretation of the email was correct, it did not fall within the ambit of iniquity and was still privileged.
Employment Tribunal Decision
At a preliminary hearing, an employment judge struck out parts of Mr Curless’s claim which sought to rely on the 29 April email, on the ground that it was protected by legal advice privilege. The tribunal determined two questions:
That at its highest, the e-mail discloses advice on how to handle a possible redundancy as part of a UK wide process by which it would be reducing the number of lawyers it employed and acknowledges the risk that Mr Curless might take legal action but points to the wider context as in effect justification. It is legal advice aimed and avoiding rather than evading possible legal action in place of simply doing nothing in fear that the Claimant might take further legal action. This is what lawyers do day in day out and the giving of legal advice does not as a matter of course raise iniquity.
Whether the 29 April email constituted a strong prima facie case of iniquity. Shell argued that, to qualify as iniquity, there had to be conduct akin to fraud. While discrimination was to be viewed seriously, it was only a tort. The employment judge agreed, holding that it would go too far to elevate a tort to the status required to disapply legal advice privilege.
Employment Appeal Tribunal Decision
The Court of Appeal allowed the appeal, holding that legal advice privilege applied and Mr Curless could not rely on the 29 April email.