Michael Curless v Shell International Ltd
| Jurisdiction | England & Wales |
| Judge | Sir Terence Etherton MR,Lord Justice Lewison,Lord Justice Bean |
| Judgment Date | 22 October 2019 |
| Neutral Citation | [2019] EWCA Civ 1710 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2018/2509 |
| Date | 22 October 2019 |
[2019] EWCA Civ 1710
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Slade J
[2018] UKEAT 0261/17/0908
Royal Courts of Justice
Strand, London, WC2A 2LL
THE MASTER OF THE ROLLS
Lord Justice Lewison
and
Lord Justice Bean
Case No: A2/2018/2509
Bankim Thanki QC and Nico Leslie (instructed by Cameron McKenna Nabarro Olswang LLP) for the Appellant
Patrick Halliday (instructed by Fox Williams LLP) for the Respondent
Hearing dates: 2 & 3 October 2019
Approved Judgment
Sir Terence Etherton MR, Lord Justice Lewison and
The central issue on this appeal is whether the Employment Tribunal (Judge Tsamados) (“the ET”) was correct to order on a preliminary hearing that two paragraphs of the disability discrimination and victimisation claim of the respondent, Michael Curless, should be struck out on the ground that they referred to respectively an email and a conversation in respect of which Shell is entitled to claim legal advice privilege (LAP).
This appeal by Shell is from the order of the Employment Appeal Tribunal (Mrs Justice Slade) (“the EAT”) dated 9 August 2018 allowing Mr Curless' appeal from the decision of the ET and setting aside that decision.
Background
The following account is largely based on the findings of the ET.
Mr Curless was employed as a Senior Legal Counsel by Shell from 29 or 30 January 1990 until his dismissal allegedly for redundancy with effect from 31 January 2017.
He suffers from Type 2 Diabetes and Obstructive Sleep Apnoea (“OSA”). He uses Constant Positive Airway Pressure (“CPAP”) equipment to help alleviate the effects of his OSA. This is breathing equipment consisting of a mask worn at night, through which humidified air is pumped, so as to prevent the user's throat tissues closing during sleep. Mr Curless has always struggled to use the equipment and, in particular, the face masks.
There were ongoing concerns by Shell as to Mr Curless' performance at work from 2011 with regard to his ability to meet deadlines and general standard of work. He was given low Individual Performance Ratings, his applications for vacant litigation roles were rejected and he was required to provide written reports as to work carried out. Mr Curless says that these matters gave rise to unlawful disability discrimination and/or failure to make reasonable adjustments.
Mr Curless submitted a claim to the ET on 14 August 2015 (“the First Claim”). He also raised an internal grievance on 2 January 2016. Both raised complaints of disability discrimination. The grievance was subsequently dismissed in June 2016.
Shell acquired BG Group plc (“BG Group”) on 15 February 2016. There followed a group-wide redundancy programme.
From April 2016 onwards Shell offered Selective Voluntary Severance (“SVS”) to certain targeted groups of employees, which allowed those employees to apply for voluntary severance from 7 June 2016. Mr Curless applied for certain roles but was unsuccessful and was then placed in a redundancy consultation process. His employment was terminated with three months' notice allegedly by reason of redundancy on 1 November 2016, his employment ending on 31 January 2017.
The Second ET Claim
Mr Curless commenced a second ET claim on 3 March 2017 (“the Second Claim”) alleging further disability discrimination, victimisation and unfair dismissal. In broad terms, Mr Curless alleges that Shell relied on a planned re-organisation of its in-house legal department as a pretext by which to terminate his employment by way of redundancy. He alleges that this was also unlawful discrimination and victimisation as a result of the First Claim and his grievance of 2 January 2016.
In the “Details of Claim”, which accompanied the claim form in the Second Claim, Mr Curless said in paragraph 8 that Shell purported to dismiss him on the ground that he was redundant but he denied that redundancy was the genuine reason or principal reason for his dismissal. He alleged in paragraph 9 that he was dismissed because of (1) his disability, (2) matters arising in consequence of his disability, and/or (3) his protected acts. Paragraphs 10 and 11 of the Details of Claim were as follows:
“10. In support of the matters averred in the previous paragraph, the Claimant relies in particular on the following:
(i) In or around late May of 2016, the Claimant was in The Old Bank of England, a bar on Chancery Lane in London. He overheard a conversation between two people, who he believes to have been lawyers from Lewis Silkin. They mentioned a senior lawyer at the Respondent who had commenced a disability discrimination claim in the Employment Tribunal. The Claimant believes that they were referring to him. They said that this individual's “days are numbered”, because his managers had said that his Employment Tribunal claim was to be handled firmly, and because the Respondent planned to use the context of a redundancy exercise to terminate his employment purportedly by reason of redundancy.
(ii) In October 2016, the Claimant learnt that, in April 2016, Ms Alex Ward (the Respondent's “Managing Counsel, UK Employment and Employee Benefits”) had told David Brinley (who was the line manager of the Claimant's line manager) that the Respondent could use a planned re-organisation of the Respondent's in-house legal department in order to terminate the Claimant's employment. Ms Ward told Mr Brinley that it was worth considering this in order to avoid the risk of “impasse and proceedings with ongoing employment with no obvious resolution”. She did so while the Claimant's disability discrimination grievance process (see below) and existing claims for disability discrimination were in train, and three months before the Claimant was put on notice of risk of redundancy. This indicates that the Claimant's ‘redundancy’ process was a sham designed to end his employment, and that the Respondent wanted to end his employment because he had done protected acts, namely raising his disability discrimination grievance and bringing his Employment Tribunal claims of disability discrimination.
11. For the avoidance of doubt, the Claimant contends that none of the matters described in the previous paragraph attracts legal professional privilege. Even if (which is not admitted) any of those matters involved the giving or receiving of legal advice, privilege does not attach to iniquity, i.e. to communications which are for any “dishonest” purpose, including “sham contrivances”; and/or to conduct which the law treats as contrary to public policy. It was dishonest and/or a sham contrivance and/or contrary to public policy for the Respondent to use ‘redundancy’ as a pretext for terminating the Claimant's employment, especially where it wished to terminate his employment because of his protected acts.”
Mr Curless became aware of the matters in paragraph 10(ii) of the Details of Claim as a result of seeing an email dated 29 April 2016 between other Shell lawyers. That email was sent to him by an anonymous sender in October 2016. The email was from a lawyer, Ms Alex Ward (Managing Counsel, UK Employment and Benefits). At the time, she retained high-level responsibility for giving legal advice in relation to Mr Curless. The recipient was Angela Gill of Lewis Silkin LLP, who effectively had been seconded to Shell. Ms Gill had conduct of Shell's defence in the First Claim. The email recorded Ms Ward's conversation of 29 April 2016 with David Brinley (General Counsel for the Projects and Technology Business). Mr Brinley was Mr Curless' indirect line manager because he line-managed Pamela Nelson, Mr Curless' immediate line manager.
The email was headed “Legally Privileged and Confidential” and said as follows:
“Spoke to David Brinley [In-house General Counsel with Shell].
It looks as though there are both opportunities for SVS 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.”
It is not in dispute that the “individual” mentioned in the second paragraph of the email was Mr Curless.
Shell applied by letter dated 23 March 2017 to strike out paragraphs 10(ii) and 11 of the Details of Claim on the ground that they referred to correspondence that was protected by LAP. The application was subsequently extended to cover paragraph 10(i).
In its Grounds of Defence in the Second Claim dated 7 April 2017 Shell denied all the allegations in the Second Claim as to detrimental and less favourable treatment, discrimination arising from Mr Curless' disability, unfair dismissal, discrimination and victimisation, and asserted that Mr Curless was dismissed because his role was redundant. As regards paragraphs 10 and 11 of the Details of Claim, Shell denied that the conversation alleged in paragraph 10(i) took place as alleged and/or that Mr Curless overheard...
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