Recruitment leaders, did you know legal privilege doesn’t protect every HR conversation?

When a dispute lands at tribunal, only certain conversations are protected under legal professional privilege (LPP) and most HR comms don’t make the cut. 

There are two types of LPP: 

Legal advice privilege 

Litigation privilege 

Each has strict rules. If you’re relying on consultants instead of qualified legal advice, your strategy could end up as tribunal evidence. 

Here’s what recruiters need to know.  

Legal Advice Privilege: What Actually Counts 

Legal advice privilege applies to confidential communications between a client and a qualified legal adviser (typically a solicitor), made for the purpose of giving or receiving legal advice. 

That’s it.  

HR consultants, no matter how experienced don’t qualify unless they’re legally trained or working under the supervision of a solicitor. If they’re not, their emails, notes, and advice could all be disclosable in legal proceedings.  

In Trentside Manor Care v Raphael, a HR consultant notes were used against an employer at tribunal. The consultant recorded that the employer was “not receptive to the claimant’s health needs” – a line that helped sink the case. 

Litigation Privilege: Even Narrower 

Litigation privilege only applies when: 

Litigation is reasonably in prospect, and 

The communication is created for the dominant purpose of that litigation. 

So, a few HR emails about a “difficult” employee? Not protected. 

Even if you think a claim might come, unless your lawyer is leading the advice and the communications are clearly strategic, you can’t assume privilege applies. Copying a solicitor into an email isn’t enough. 

Recruiters, this is where we see mistakes! 

We’ve seen it too often, recruitment firms thinking internal HR advice is shielded, only to have it handed over in a disclosure bundle. 

The most common risks:   

• Using HR consultants instead of solicitors 

• Discussing sensitive issues (like sickness, underperformance or grievances) via unsecured email chains 

• Failing to bring in legal advice early enough 

Once it’s in writing, it’s either protected or potential evidence. 

recLAW Recommendation 

If you’re dealing with sensitive employment issues don’t wait until you’re under fire. 

Get recLAW involved from the start. We’ll: 

• Make sure your communications are covered by legal privilege 

• Help you build a strategy that holds up under pressure 

• Keep your internal risk off the record 

Legal privilege isn’t automatic. But it can be the difference between protecting your strategy or exposing it.