Original Investigation Report Not Protected by Legal Privilege
Friday 28th October 2022
A grievance investigation report did not attract legal advice privilege when a later version of the report, which had been amended by the employer’s solicitors, was disclosed during tribunal proceedings. This was held by the Employment Appeal Tribunal (EAT) in the recent case of the University of Dundee v Chakraborty.
Facts
The Claimant had raised a grievance against his line manager alleging harassment, bullying, discrimination and racial abuse. An impartial member of staff for the Respondent was then appointed to investigate the grievance and produce a report on their findings. During this time, the Claimant had commenced proceedings against the Respondent at the Employment Tribunal (ET).
After proceedings had been issued, the Respondent instructed external legal advisers to review the report and they suggested a number of improvements. This amended version of the report was disclosed to the Claimant for the upcoming hearing.
The Claimant made an application for the disclosure of the original, unamended report which the Respondent argued was protected by legal advice privilege. The ET ordered that the Respondent must produce the original report, leading the Respondent to appeal the decision.
Decision
The EAT dismissed the Respondent’s appeal stating that the original, unamended report was not privileged, only the contents of any advice given by the Respondent’s solicitors about that original report would be. This remained the case even though its disclosure might allow a comparison to be made between the two versions of the report, allowing inferences to be drawn about the advice that might have been given.
Comment
As we have already confirmed the rules relating to privilege are complicated and nuanced. In light of this case, it may be best practice to draft any original report with the clear and recorded intention of seeking advice from a lawyer first, or even better asking your lawyers to prepare the first draft.
