385: Are all versions of a grievance report protected by legal privilege?
In the recent case of Chakraborty v University of Dundee, the Employment Appeal Tribunal (EAT) held that the first draft of an employer’s investigation report was not protected by legal advice privilege and had to be disclosed in Tribunal proceedings.
There are two main types of legal privilege which protect documents from having to be disclosed to third parties. ‘Legal advice privilege’ protects communications between a lawyer and their client for the purpose of seeking and receiving legal advice. ‘Litigation privilege’ protects documents created in contemplation of litigation.
Mr Chakraborty raised a grievance against his line manager with the University of Dundee, complaining of harassment, bullying and discrimination. The University appointed a manager to investigate and produce a report. Whilst the investigation was still ongoing, Mr Chakraborty commenced Employment Tribunal (ET) proceedings.
The investigator produced a first draft report which was passed to the University’s external solicitors for review. Amendments suggested by the solicitors were subsequently incorporated into a final version of the report, together with some additional amendments made by the investigator. This final report was provided to Mr Chakraborty in the Tribunal disclosure process, with a note on the first page stating: “This report was amended and reissued on 23.06.2022 following independent legal advice.” Mr Chakraborty then asked for disclosure of the original unamended report.
The University conceded that the original report was produced as an investigative response to Mr Chakraborty’s grievance and so was not protected by legal advice or litigation privilege when it was created. However, the University argued that legal advice privilege applied retrospectively to this first draft, because a comparison could be made between the two versions which would enable inferences to be drawn about the legal advice provided by its solicitors.
The ET rejected this argument and made an order requiring the University to disclose the original version of the investigation report. An appeal by the University has now also been dismissed. On appeal, it was confirmed that it is not possible for a document to acquire privilege retrospectively. The original unamended report was created solely as a response to Mr Chakraborty’s grievance, so could not be protected by legal advice or litigation privilege and had to be disclosed to him.
This case is a useful reminder that legal privilege cannot apply retrospectively and that employers should be very careful as to what they put into writing, even in ‘draft’ format. As soon as documents are created during internal procedures, they could potentially have to be disclosed in any Tribunal proceedings. This could include earlier drafts of investigation reports and all email or written communications. In order to benefit from legal advice or litigation privilege, legal advice should be sought as early as possible regarding grievance and disciplinary procedures, ideally at the outset of the investigation process.
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