In the recently reported case of University of Dundee v Chakraborty [2022], the Employment Appeal Tribunal (EAT) considered if different versions of a draft investigation report needed to be disclosed by an employer in the course of an employment tribunal claim. This case does not establish new law, but it is a useful reminder of the strict application of when a document may be protected under legal privilege.
If a claim is brought in an Employment Tribunal, there is a duty of disclosure that means an employer is required to disclose documents relevant to the issues in dispute that are in its possession or control. There are exceptions to this obligation if privilege rules apply:
Legal advice privilege
Confidential communications between lawyers and clients made for the dominant purpose of seeking or giving legal advice.
Litigation privilege
Confidential communications between lawyers and clients, or the lawyer or client and a third party, which come into existence for the dominant purpose of being used in connection with actual or pending litigation.
In this case, the EAT concluded that legal privilege did not apply retrospectively to an original version of an investigation report that did not originally attract either litigation or legal advice privilege.
Facts of the case
Mr Chakraborty, raised a grievance under his employer’s Dignity at Work Policy. A manager was appointed by his employer to investigate. In the meantime, before the report was completed, Mr Chakraborty made claims of race discrimination and harassment to the Employment Tribunal. The employer asked its lawyers to review the report before sharing it with Mr Chakraborty, and they suggested various amendments to the report. The investigator accepted the lawyers’ amendments and made amendments of her own prior to the revised report being disclosed to Mr Chakraborty and included in the tribunal bundle. The investigation report was marked with the following: “Note: This report was amended and reissued on 23.06.2022 following independent legal advice.” The employer did not disclose the original version of the report.
Mr Chakraborty wanted to see the original copy of the report and made an application for disclosure of it. The employer conceded that the original report was not protected by legal advice or litigation privilege. But, the employer resisted disclosure on the basis it submitted that the report retrospectively attracted legal advice privilege. The point being that if a comparison was made between the original and amended reports, inferences could be made about the legal advice that had been provided to the employer. The employer’s argument was that privilege protection applied retrospectively due to the legal advice it had subsequently obtained on the report’s contents, which led to the amended version.
The EAT did not accept the employer’s appeal, noting its argument was not supported by legal authority and incorrect. The original report could not retrospectively attract the protection of privilege. Furthermore, the EAT considered it would be difficult to work out what legal advice had been provided to the employer by comparing the two versions of the report. This was particularly as the manager had also made her own amendments to the report, which may have been unrelated to the legal advice.
Take away points for employers
This case demonstrates the importance of planning in advance internal investigations into grievances, disciplinaries and other employee related matters and to give consideration to the protection of privilege at the outset.
Employers should be mindful that relevant correspondence, investigation reports, including possible early non-privileged reports may need to be disclosed. For this reason it is important to be careful with the drafting of an investigation report and consider creating one documented report, which is overwritten when it is amended. Furthermore, to have the advantage of legal advice privilege, employers should seek legal advice at any early stage, ideally before the time at which a report is created.
If you have any questions regarding workplace disputes please feel free to get in contact with our employment team.