Legal update – Kasongo v Humanscale UK Ltd

Kasongo v Humanscale UK Ltd

In this case, the Claimant said she had been automatically unfairly dismissed and discriminated against on the grounds of pregnancy and maternity. During the course of the hearing, the employer chose to disclose documents containing summaries of legal advice about dismissal because it was said they demonstrated that the employer was unaware that Ms Kasongo was pregnant when it decided to dismiss her. However, the EAT held that the partial disclosure of privileged material (legal advice between Humanscale and their lawyers) caused a waiver of privilege in other documents containing advice about dismissal. In particular, this meant that comments in a draft letter of dismissal which had been redacted before the tribunal (and which the Claimant had somehow managed to see) could be relied on in evidence in hearing the claim.

The case is a reminder of the potential risks of selective disclosure of privileged material as that can mean that any privilege in connection with the same matter is waived. The courts take the view that the partial waiver of privilege could lead to a situation where the employer or claimant was “cherry picking” which bits of evidence the tribunal should be allowed to see and therefore presenting an unbalanced picture of the evidence.

Global Climate Strike

Employers should be planning their position in response to employees who wish to take part in the global climate strike being planned for the end of September. The organisers aim to encourage the workforce to replicate the mass walkouts of school students which have attracted significant publicity and political engagement around the world. Climate change activists backed by Greta Thunberg are calling for a global climate change strike for the week starting on 20 September 2019. The stated purpose is to “show our politicians that business as usual is no longer an option”. There is currently media speculation that as many as 5 million workers in the UK could participate. Organisers hope to galvanise participants from 150 countries to take part.

If you think your business may be affected it may be advisable to decide in advance (and also advise your workforce) what the company’s position with regards to any employees wishing to take part will be. There is clearly no “right” to take time off unless the employer agrees. If that is not your organisation’s position, it may be prudent to explain that to employees in advance and also to explain to them what their options are for taking time off if they wish to participate, e.g. holiday requests, e.g. unpaid time off, e.g. making up hours if time off is taken. You may also wish to emphasise that you do not wish anyone taking part to link their participation with your organisation or alternatively, if you do allow this you may wish to emphasise the standards of behaviour which will be expected of those participating.