Iniquity, privilege & an unwise conversation in the pub

• The Court of Appeal has ruled that Shell could claim privilege in an e-mail giving legal advice about dealing with a discrimination claim in the context of a wider redundancy programme
• It took a different view from the Employment Appeal Tribunal, which ruled last year that privilege could not be claimed, because the advice had been given ‘for the purpose of facilitating an iniquity’.

The Court of Appeal’s decision in Curless v Shell International Limited [2019] EWCA Civ 1710, [2019] All ER (D) 137 (Oct) touches on a subject that is commonly encountered by employment lawyers when advising on implementing a redundancy programme.

What happened?

In this case Michael Curless had been employed as a senior legal counsel by Shell. He has Type 2 diabetes and obstructive sleep apnoea. There had been long-standing concerns about his performance. He had made complaints about disability discrimination and had