Tribunal refuses to force council to disclose legal advice over costs of employment case involving mayor
A member of the public has failed in a bid to force Liverpool City Council to disclose the legal advice behind its decision to pay the costs incurred by elected mayor Joe Anderson in an unfair dismissal case.
In Coyne v Information Commissioner & Liverpool City Council (Dismissed : Freedom of Information Act 2000) [2017] UKFTT 2016_0315 (GRC) the First-Tier Tribunal General Regulatory Chamber (Information Rights) upheld the Information Commissioner’s decision that the material attracted legal professional privilege.
Applicant John Coyne asked the council to disclose all material relating to its approval of its payment of Mr Anderson’s legal costs in employment and employment appeal tribunals cases.
Liverpool disclosed some of what was sought but said the legal advice concerned attracted professional privilege.
Mr Coyne argued in his appeal that the council had been wrong to indemnify the mayor over the costs, that there was a public interest in disclosure and potential evidence of wrongdoing.
Judge Chris Hughes said the council sought legal advice on its powers to grant indemnities and it “clearly attracts legal professional privilege and the view of the council that this is both litigation privilege in the light of possible formal challenges to items of account and advice privilege in the light of its nature and intended use is clearly correct”.
Showing the advice to its auditor did not weaken the council’s claim to privilege, he said.
The judge said Mr Coyne had argued that that if the advice were disclosed and he took a different view of the issues in the advice from the solicitors involved, “then this would be evidence of wrong-doing. The tribunal is wholly unconvinced by this argument.
“His suggestion that the advice was used to pull the wool over the eyes of the auditor lacks any credibility.”
Judge Hughes concluded: "The tribunal is satisfied that the ICO properly characterised the material as attracting LPP. The tribunal is further satisfied that the public interest in maintaining LPP is substantial. There has been transparency from the Council with respect to its decision-making and the Appellant has been unable to demonstrate any grounds for his belief there has been misconduct."
Mr Anderson took Sefton Metropolitan Borough Council’s Sefton High School to the Employment Appeals Tribunal in November 2014 when he argued he had been unfairly dismissed from his post there.
His mayoral position was full time and carried an £80,000 annual salary but the school had kept Mr Anderson on at the maximum allowed as paid leave to enable employees to hold public office, while his post was held open and Sefton also continued to pay pension contributions.
This arrangement ended when the school became an academy and its new management objected to paying Mr Anderson £4,500 a year for which “the pupils at the school received no benefit”, the ruling noted.
The Employment Tribunal found the dismissal procedure was unfair, and upheld the mayor’s claim for unfair dismissal. However, it said Mr Anderson was entitled only to a basic award subject to a Polkey deduction and contributory fault.
Upholding the original tribunal decision, Judge Serota said: “It seems to me as though [Mr Anderson] has simply not given sufficient attention as to how the arrangement he made with Sefton and so continued with the [academy] might look to outsiders.
“The claimant was entitled to receive almost £80,000 per annum from Liverpool for his role as elected Mayor, yet also procured a payment (albeit modest) from public funds for which he provided, and was not expected to provide, any service. It was, more likely, considered to be a reverse form for a zero hours contract, whereby the respondent was bound to make payment of salary but the claimant was not bound to provide any services.
“It is certainly fairly arguable that this arrangement may strike members of the public as constituting a misapplication of public monies.”
Mark Smulian
