Legal advisers must beware of going too far for clients

A legal adviser can be guilty of victimisation if it can be shown they are going beyond their client’s instructions, the appeal court has ruled.

A case arose out of what happened to a receptionist/ housekeeper, Ms Bird, after she unsuccessfully brought a race discrimination claim against her employer.

Mr Sylvester, on the advice of his solicitors, sought to discipline Bird on the grounds of misconduct and breach of the implied duty of fidelity. His solicitors advised Sylvester to take disciplinary action against Bird for having brought a “misconceived” claim and for making “unreasonable and unfounded” submissions to the employment tribunal.

Bird considered that this could amount to victimisation. She brought a claim against both her employer and his solicitors. However, the claim against Sylvester’s solicitors was struck out on the basis that it had no reasonable prospect of success. The decision to strike out the claim against the solicitors was challenged by Bird in the Court of Appeal.

This court decided that there is no public policy reason why a solicitor cannot be liable for victimisation. Workers will need to consider whether the employer’s solicitors have gone beyond the provision of objective legal advice, and are acting beyond their client’s instructions. If it can be shown that solicitors are actively promoting or carrying out oppressive actions, then they could be liable. On the facts of this case they were not.