In X v. Y Ltd, Y lodged a claim alleging disability discrimination and victimisation. An ET struck out two paragraphs in the claim form referring to an email from a member of Y Ltd’s legal department to a solicitor seconded to Y Ltd, on the basis that they were protected by legal advice privilege. The ET rejected an argument that legal privilege had been lost because of ‘iniquity’, i.e. the advice was designed to create a sham situation and was unethical. The EAT upheld X’s appeal. If the advice had gone no further than “you may select the Claimant, an employee with a disability, for redundancy but you run the risk of a claim by him” it would not have reached the high threshold required to disapply legal advice privilege. But, the email records legal advice that a genuine redundancy exercise could be used as a cloak to dismiss X to avoid his continuing complaints and difficulties with his employment which he alleged related to his disability. A strong prima facie case of iniquity had been established because the advice was not only an attempted deception of X, but if persisted in, a deception of an ET in any future legal proceedings.

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