Many employers and employees are increasingly using AI as a sounding board before seeking legal advice. On the surface, it seems like a good idea: it’s quick, it’s informal, it’s cheap and it feels private.
However, as B P Collins’ employment team warns, chats with AI tools do not benefit from legal privilege. If an employer asks their preferred AI tool, ‘How do I dismiss this troublesome employee?’; ‘What’s the best way to manage someone out?’ or ‘Is there a way of making this dismissal look like a redundancy?’; or an employee asks, ‘What evidence should I create to strengthen my case?’ or ‘How can I make my employer’s actions look like discrimination?’ – these conversations could be disclosable in litigation and ultimately end up in a bundle before the Employment Tribunal. That could be rather uncomfortable when it is read by the judge.
Additionally, it is increasingly clear from case law that putting privileged legal advice into AI for a second opinion may waive legal professional privilege in that advice. In other words, if legal advice received from a lawyer is fed into an AI tool for further analysis, the protection that privilege provides may be lost. Once that privilege has been waived, it cannot be restored.
This protection is particularly important during litigation because it means communications between a lawyer and their client remain confidential from the Employment Tribunal and from the other side.
Many of us are tech savvy these days and it’s only natural that we turn to AI for advice and information. However, always remain cautious and:
- Assume anything said to an AI tool might be read by someone else.
- Don’t put anything into an AI tool that you would not be comfortable seeing in writing later.
- If advice is needed on a difficult workplace issue, ask a lawyer – not a chatbot.
- Do not upload privileged legal advice, correspondence with lawyers or draft legal documents into an AI tool.
- Remember that AI providers may store, process or use information entered into their systems, depending on the platform and settings used.
- Be particularly cautious when discussing sensitive employment issues such as disciplinary action, grievances, dismissals or redundancy exercises.
- Keep a clear record of important decisions and the legal advice received from qualified advisers, rather than relying on AI-generated summaries.
Tribunal backlogs
There is also growing evidence that AI is contributing to pressures on the Employment Tribunal system. Employment lawyers, judges and HR professionals have reported a sharp increase in AI-assisted grievances and tribunal claims, many of which are significantly longer, more complex and sometimes contain inaccurate legal arguments or irrelevant material. This can increase the time required for employers to respond, for judges to case-manage claims and for tribunals to hear and determine disputes.
AI can be a useful tool, but it is not a substitute for legal advice and it does not provide the same protections that come with a lawyer-client relationship.
If you’re concerned about your AI usage during a legal matter or are unsure whether information generated by AI should be disclosed, it is advisable to seek independent legal advice. A solicitor can provide tailored guidance, help protect your legal position and ensure that you comply with any relevant obligations and laws.
For further information and advice, please get in touch with Jo Davis or B P Collins’ employment team at enquiries@bpcollins.co.uk or call 01753 889995 to see how they can help.
