No retrospective privilege for draft grievance reports
A draft grievance and disciplinary investigation report was held not to acquire privilege retrospectively, regardless of whether a comparison between different versions of the report might disclose legal advice given
Employers often rely on their solicitors to review and, where necessary, advise on suggested amendments to their draft grievance and disciplinary investigation reports before the finalised document is distributed to the employee. The assumption might be that all versions of these reports are protected by legal privilege apart from the final version. However, the Employment Appeal Tribunal (EAT) in University of Dundee v Mr Prasun Chakraborty reached a different conclusion.
Chakraborty was employed by the University of Dundee since 2013 but, in November 2021, he raised a grievance against his line manager on the grounds of harassment, bullying, discrimination and racial abuse. An independent member of staff at the University, Professor Niamh Nic Daeid (ND), was instructed to investigate the matter. ND produced her report on the 28 February 2022, by which time Chakraborty had already presented Employment Tribunal claims of race discrimination and harassment. The University contacted external legal advisers to review the report and they proposed some amendments, with ND also making her own additional amendments on the 23 June. This revised final version was disclosed to the Tribunal, while the original document was not disclosed.
During the evidential hearing, Chakraborty applied for the disclosure of the original report, but this was resisted by the University on the grounds that it was protected by legal advice privilege and that, if the unamended version were to be disclosed, then inferences about the nature of the legal advice could be drawn by conducting a comparison of the two documents. The Employment Tribunal rejected this argument and made the disclosure order, and the University appealed to the EAT.
The EAT determined that the grievance investigation report could not be retrospectively privileged, even when an amended version of the report is disclosed during tribunal proceedings. This is the case even if a comparison between the different versions of the report may allow for inferences on the nature of the legal advice to be drawn. Although terms of any advice given about the original document and any amended version created for the purposes of the litigation would be covered by the principles of legal advice privilege and/or litigation privilege, the original unamended document was not. In any event, the EAT went on to state that, on the facts, it would be difficult to infer the legal advice given by merely comparing the original document with the version lodged by the Appellant, largely due to ND also making her own amendments alongside the legal advice given – although the EAT clarified that, even if the legal advice given would have been clear from the comparison of the reports, this would not be enough to allow the University to claim privilege over the original report.
This decision is significant as it means employers need to be very careful as to how and when they request legal advice during an investigation process and in maintaining confidentiality throughout. It must not be assumed that all documents are privileged just because they are shared with lawyers. It is perhaps key in this particular case that the employer admitted the original version of the investigation report was not privileged at the point when it was created. In some circumstances the initial investigation report itself may be prepared in order to gain legal advice on the allegations raised or prepared for the purpose of pursuing or defending litigation and therefore may arguably be covered by privilege. It is therefore important to seek legal advice at the earliest opportunity to ensure the investigation process and any documents produced are managed appropriately.
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