If you clicked on the link in your last email, you’ll understand how to limit the risk of correspondence to an employee about a settlement being disclosed in any subsequent legal proceedings. But what about any discussions going on behind the scenes with other people? 

These are my tips to ensure these remain confidential if negotiations break down and the employee brings a claim.

If you take legal advice about the situation, you may assume your lawyers would never have to disclose this advice to an employment tribunal. This is not necessarily true and you must be careful.

There is something called ‘legal advice privilege’ which protects advice given by a lawyer from disclosure. However, it only applies to advice given to a ‘client’. If a manager starts sending copies of advice received far and wide, it may lose its protection. My top tip here is to have a clearly defined ‘client team’ – don’t let legal advice or documents seep any wider than this.

If you prepare documents for your solicitor, make sure you actually send them over. Otherwise, they will not be privileged and will be disclosable.

If you copy and paste advice or paraphrase it and send it out to others internally, it will lose privilege. The original document from the lawyer will attract privilege but your cut-and-paste job will not.

Documents sent between managers, or between managers and HR, are not covered by legal advice privilege. They are disclosable unless they have been prepared for the dominant purpose of litigation. So be careful what you write in emails or WhatsApp messages. Also, remind managers to avoid airing their views openly in internal correspondence.

With my Done-For-You Settlement Agreement Service, you’ll receive a full risk report, a clear negotiation strategy, and personal support over Zoom – ensuring a smooth, risk-free exit.