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Work Matters: Legal professional privilege does not apply retrospectively

The EAT in University of Dundee v Chakraborty held that an original grievance investigation report should be disclosed as part of ET proceedings. The report was not covered by legal professional privilege when it was created and did not retrospectively gain privilege just because a comparison with the final version of the report - amended following legal advice - may reveal the nature of such advice.

Legal background

When an employee brings an ET claim, the employer and the employee need to provide to each other any documents relevant to the issues in dispute - the exercise is known as ‘disclosure’. The requirement is for parties to provide copies of any documents that damage their case, as well as those which help it, to ensure that the parties have access to all of the relevant documents relating to the dispute at an early stage. The underlying principle is that the ET can only deal with a case fairly and justly if all of the relevant material is made available.

However, communications covered by legal professional privilege are exempt and do not need to be disclosed. This privilege is split into two types:

  • Legal advice privilege — this applies to confidential communications which have been created for the (dominant) purpose of asking for or giving legal advice.
  • Litigation privilege — this applies to confidential communications which have been created for the (dominant) purpose of pending, existing or reasonably contemplated litigation.

Facts

The employee, Mr Chakraborty, raised a grievance with his employer, the University of Dundee, against his line manager in respect of alleged harassment, bullying and discrimination. The grievance was investigated by a senior member of staff under the employer’s Dignity at Work and Study Policy (with assistance from HR).

By the time the investigation and the report had been completed, Mr Chakraborty had submitted a claim in the ET. The investigator produced her report a few days before it was sent to external legal advisors for review. The legal advisors suggested some amendments, which the investigator accepted and she also made some further amendments of her own. The report, as amended, was then disclosed to Mr Chakraborty with a note on the first page which said ‘Note: This report was amended and reissued on 23.06.2022 following independent legal advice’.

Mr Chakraborty requested disclosure of the original (unamended) report but the employer refused on the grounds that it was protected by legal professional privilege - as comparison with the amended version would enable inferences to be made about the legal advice given.

Tribunal decision

The ET said that legal professional privilege did not apply and ordered the original report be disclosed.

The employer appealed.

EAT decision

The EAT dismissed the appeal. It agreed with the ET that legal professional privilege did not apply to the original report.

The report was not protected by legal advice privilege (it was not created for the purpose of taking legal advice) or litigation privilege (it was not created for the purpose of litigation). It was created as an investigative fact-finding report on an internal grievance and the employer accepted this.

The EAT confirmed that the legal advice subsequently provided on the report, and any consequent amended version of the report, would be privileged. However, the EAT did not agree with the employer’s argument that the original report also became retrospectively privileged because of this. The fact that a comparison could be made between the original and amended report which could reveal the advice (or enable it to be inferred) did not result in the original report becoming privileged.

In any event, the EAT thought it difficult to understand how the legal advice could be revealed in the way suggested by the employer given that the investigator had also made her own amendments to the report, and it would be difficult for the employee to ascertain which of the particular amendments were connected to the legal advice.

Fladgate comment

This decision is important for employers as it:

  • is a good reminder that the content of investigation reports produced for internal procedures will usually need to be disclosed in any subsequent ET proceedings to which they are relevant. These reports are not generally protected by legal professional privilege; and
  • confirms that even if these reports are amended to take into account legal advice, it is only the advice and amended versions which are privileged. The original version does not retrospectively acquire privileged status, even if comparisons with later versions may reveal the legal advice given.

The reason that un-amended investigation reports are not protected is because they are predominantly produced as part of internal fact-finding exercises, which are generally not undertaken for the purpose of obtaining legal advice.

That said, where lawyers are already involved in advising on the investigation before the report is created - and are the first to receive and review the report – then the report may benefit from legal advice privilege. To capitalise on this approach, employers should ensure that:

  • the terms of reference for the investigator includes a provision allowing them to seek legal advice if needed;
  • the first draft of the report is marked as ‘Privileged: drafted for the purpose of seeking legal advice’;
  • the report is not shared with others before legal advice is taken and subsequent amendments are made to it; and
  • subsequent versions of the report are not marked (as happened in this case) as ‘amended and reissued following legal advice’. This will only serve to draw attention to previous drafts and suggest that these were issued before taking such legal advice.

However, employers should be mindful of the fact that the claim of legal professional privilege over initial versions of a report may be challenged. If successful, this will mean that the earlier versions need to be disclosed and will be read by both the employee and the ET - so always remain vigilant in respect of the report’s content from the very first draft.

If you involve lawyers only after the report has been created, bear in mind that the original report will not be protected by privilege - neither on its own merits, nor retrospectively.

In either case, do keep careful control over the number of draft versions of a report which are produced and to whom they are circulated. It is best practice to have a single document which is overwritten when amended and to share it with the least number of staff possible. This will optimise your chances of eliminating (or at least reducing) the risk of any ill-advised and damaging content ending up in the wrong hands.

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