1. Introduction

Brennan & Ors v. Sunderland City Council Unison GMB ([2009] ICR 479) is a pivotal case adjudicated by the United Kingdom Employment Appeal Tribunal on December 16, 2008. This case delves into the intricate balance between the protection of legal professional privilege and the principles of fairness in employment litigation, specifically addressing whether partial disclosure of legal advice constitutes a waiver of privilege.

2. Summary of the Judgment

The case revolves around Mrs. Brennan and other claimants challenging the City of Sunderland and two trade unions over equal pay claims initiated in 2003. Central to the dispute were the defenses raised by the employers, particularly genuine material factor (GMF) defenses under the Equal Pay Act 1970. The crux of the appeal concerned the claimants' request for disclosure of the council's legal advice and specific cabinet meeting minutes, arguing that the partial disclosure implied a waiver of privilege. The Employment Appeal Tribunal ultimately dismissed the appeal, ruling that no waiver of privilege had occurred, as the disclosed information did not amount to reliance upon the privileged material to advance the council's case.

3. Analysis

3.1 Precedents Cited

The judgment extensively references several key precedents that shape the doctrine of legal professional privilege and its waiver:

• Wilson v Northampton & Banbury Junction Railway Company [1872] LR 14 Eq 477: Established the foundational principles of legal professional privilege, emphasizing the protection of confidential communications between lawyers and clients.
• Burnell v British Transport Commission [1955] 1 QB 187: Highlighted that merely referencing privileged information without full disclosure does not constitute a waiver.
• Great Atlantic Insurance Co v Home Insurance Co [1981] 1 WLR 529: Introduced the "cherry picking" principle, preventing parties from selectively disclosing parts of privileged documents to gain an advantage.
• Nea Karteria Maritime Co Ltd v Atlantic & Great Lakes Steamship Corporation [1981] Com. L.R. 138: Reinforced that partial disclosure without full context risks injustice, supporting the need for comprehensive disclosure when privilege is waived.
• Mustill J in Nea Karteria: Emphasized that deploying privileged material requires full disclosure to avoid misleading the court.
• Kelly v University of Southampton UKEAT/0574/05: Demonstrated that reliance on disclosed material is crucial for establishing waiver.

3.2 Legal Reasoning

The tribunal's legal reasoning focused on two primary dimensions:

• Nature of Disclosure: Determining whether the disclosed information pertained to the substance or mere effect of the legal advice.
• Circumstances of Disclosure: Assessing whether the disclosed material was used or relied upon to advance the party's case.

Applying these dimensions, the tribunal concluded that while there were references to legal advice in the council's documents, these did not amount to reliance upon the privileged material to further their defense. Therefore, no waiver of privilege was established.

3.3 Impact

This judgment underscores the stringent protections surrounding legal professional privilege in the UK legal system. It clarifies that partial disclosures, absent reliance on the disclosed material to advance a case, do not automatically result in a waiver of privilege. This has significant implications for future employment litigation, emphasizing that parties must be cautious in how they reference legal advice to avoid unintentional waiver of privilege.

4. Complex Concepts Simplified

4.1 Legal Professional Privilege

This is a fundamental principle that protects confidential communications between lawyers and their clients. Its purpose is to encourage open and honest dialogue, ensuring that clients can seek legal advice without fear that their disclosures will be used against them in court.

4.2 Waiver of Privilege

Waiver occurs when a party voluntarily relinquishes their right to assert privilege over certain communications or documents. This can happen explicitly, through a clear declaration, or implicitly, by actions that suggest the party no longer wishes to protect the privileged information.

4.3 Genuine Material Factor (GMF) Defense

Under the Equal Pay Act 1970, a GMF defense allows employers to justify pay differences between employees of different genders if the differences are based on factors other than sex and are genuine and material.

5. Conclusion

The Brennan & Ors v. Sunderland City Council Unison GMB case reaffirms the sanctity of legal professional privilege within the UK legal framework. By delineating the boundaries of what constitutes a waiver of privilege, the judgment provides clear guidance on the necessity of both the nature and context of disclosures. It serves as a critical reference point for future litigants in employment disputes, ensuring that legal advice remains protected unless there is unequivocal reliance upon such advice in advancing a party's case. Ultimately, the judgment upholds the principles of fairness, preventing parties from leveraging partial disclosures to gain undue advantage in legal proceedings.