Employment Cases Update

Kasongo v Humanscale UK Ltd UKEAT/0129/19/LA

Date published: 17/09/2019

Appeal against the ET’s decision refusing to allow the redacted parts of a draft letter dismissing the Claimant to be adduced as evidence in the case. Appeal allowed.

The Claimant, who was employed by the Respondent, was dismissed after she informed her manager that she was, or might be, pregnant. She claimed that the effective cause of her dismissal and other unfavourable treatment was her pregnancy or the prospect of her taking maternity leave, but the Respondent contended that the reason for dismissal was the Claimant's poor performance, work attitude and attendance issues. As part of the standard disclosure exercise, the Respondent disclosed various documents, including a redacted draft dismissal letter prepared by the Respondent's lawyers; however, the Claimant was somehow able to read the redacted words and wanted to rely on them at the full hearing. At a preliminary hearing, the ET decided that there had been no "cherry picking" by the Respondent's lawyers in terms of legal professional privilege, and so the Claimant could not rely on the redacted parts of the letter. The Claimant appealed.

The EAT held that the ET had erred in deciding that there had been no "cherry picking", since the disclosed documents were all part of the same transaction (which was the giving of the legal advice about the dismissal of the Claimant), and the time gap between the legal advice and the draft letter did not mean that it was a different transaction. Accordingly, the redactions to the draft dismissal letter would be removed and the full letter would be included in the trial bundle at the full hearing.

Read the full text of the judgment on BAILII or download the file by clicking the link below.