Foreign qualified in-house lawyer can give privileged legal advice: disclosure application dismissed
The tribunal dismissed a former employee's application for specific disclosure of documents, ruling that a foreign qualified in-house lawyer had capacity to give legal advice and that the dominant purpose of the communications was legal advice.
1 min read · Last updated 18 May 2026
Case details
- #specific-disclosure
- #legal-advice-privilege
- #in-house-counsel
- #foreign-qualified-lawyer
- #dominant-purpose
Key facts
- The claimant applied for specific disclosure of documents claimed to be privileged.
- The third respondent is a foreign qualified lawyer employed in-house by the first respondent.
- The claimant argued the third respondent lacked capacity to give legal advice due to not being English qualified.
- The tribunal found the third respondent had capacity to give legal advice as an in-house foreign qualified lawyer.
- The tribunal reviewed the privileged documents and found the dominant purpose was legal advice.
Timeline
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Claimant sent grievance letter
The claimant sent a lengthy grievance letter and stated she had instructed lawyers.
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External lawyers consulted
The first respondent consulted external lawyers regarding the grievance.
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Claimant's application for specific disclosure
The claimant applied for specific disclosure of documents claimed to be privileged.
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Respondent's response to application
The respondent filed a response opposing the application.
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Hearing and judgment
The tribunal heard submissions and dismissed the application for specific disclosure.
The legal issue
The tribunal had to decide whether a foreign qualified in-house lawyer (not registered in England) had the capacity to give legal advice for the purposes of legal advice privilege, and whether the dominant purpose of the communications was legal advice rather than commercial or HR advice.
The outcome
The tribunal dismissed the former employee's application for specific disclosure of documents claimed to be privileged.
The key reasons were:
- The third respondent, a French qualified lawyer working in-house for the first respondent, had the capacity to give legal advice. The fact she was not English qualified was irrelevant; the test was whether she was acting in the functional capacity of a lawyer.
- The tribunal reviewed the privileged documents and found the dominant purpose was legal advice, not HR or commercial advice.
No compensation was awarded as this was a procedural application.
Lessons & takeaways
- Employers can rely on legal advice privilege for communications with in-house lawyers, even if the lawyer is not qualified in England, provided they are acting in a legal capacity.
- When challenging privilege, the dominant purpose test is key: the communication must be for the dominant purpose of giving or receiving legal advice.
- In-house lawyers who wear multiple hats (e.g., HR) must ensure that privileged communications are clearly for legal advice to maintain protection.
What this case shows in practice
This case illustrates how employment tribunals approach claims of legal advice privilege when in-house lawyers are involved. The former employee sought disclosure of documents relating to her grievance, arguing that the third respondent, a French qualified lawyer working in-house for the company, could not give privileged legal advice because she was not registered as a solicitor in England. The tribunal disagreed, applying the principle that legal advice privilege extends to foreign qualified lawyers acting in the functional capacity of a lawyer, regardless of their formal English qualifications.
What the losing side could have done differently
The former employee's application failed because she could not show that the third respondent was not acting as a lawyer, nor that the dominant purpose of the communications was non-legal. To succeed, she would have needed evidence that the in-house lawyer was giving commercial or HR advice rather than legal advice. The tribunal's review of the documents confirmed the dominant purpose was legal advice, so the application was bound to fail.
Why the result matters for similar claims
This decision confirms that employers can protect communications with in-house lawyers who are qualified abroad, as long as they are employed to give legal advice. It also reinforces the dominant purpose test: simply involving an in-house lawyer does not automatically make all communications privileged. Employers should ensure that legal advice is clearly separated from other functions to maintain privilege. For employees, challenging privilege requires more than pointing to a lack of English qualifications; they must show that the advice was not legal in nature.