The EAT has held that the original version of an investigation report did not retrospectively become privileged after it was amended by the employer’s legal advisors.
THE FACTS
Mr Chakraborty was employed by the University of Dundee. He raised a grievance against his line manager, including allegations of harassment, bullying, discrimination, racial abuse and a suggestion that his line manager had falsely accused him of fraud.
A professor was appointed to investigate the grievance, which she did.
Before the report was produced, Mr Chakraborty presented a claim to the Employment Tribunal.
The professor produced her report on 28th February (the “original version” of the report). The next day, the University asked external solicitors to review the report. The amendments were discussed with the professor at a meeting and were approved by her. She also made amendments of her own to the report.
The revised version of the report was added to the joint bundle for the tribunal. The revised version of the report included an annotation reading “The report was amended and reissued on 23.06.2022 following independent legal advice”. The original version was not included in the joint tribunal hearing bundle.
Mr Chakraborty applied for an order requiring the University to produce the original version of the report. The University resisted the application on the basis that the original report was protected by legal advice privilege. The University argued that production of the un-amended version would permit a comparison to be made between the two versions and that this comparison would enable inferences to be drawn about the legal advice that had been given to the University. The employment tribunal did not accept the University’s submission.
The University appealed unsuccessfully to the EAT, which also held that the original version of the report was not protected by privilege.
Key points in the application and the tribunal’s and EAT’s decisions were:
- The original version of the report had been created as an investigative response to Mr Chakraborty’s grievance. It was not, therefore, when it was created, protected by either legal advice privilege or litigation privilege. This was rightly conceded by the University.
- Lawyers’ advice about the original report would be covered by legal advice privilege.
- The University contended that the production of the un-amended version would permit a comparison to be made between the two versions which would then enable inferences to be drawn about the legal advice that had been given to the University. It argued that, on this basis, privilege should be applied retrospectively.
- The EAT held that was no legal authority for the retrospective application of privilege, and that the University was incorrect.
- The EAT also commented that it was difficult to see how it could be inferred what legal advice had been given simply from a comparison of the two versions, as the investigator had also made her own amendments to the report before it was finalised.
WHAT DOES THIS MEAN FOR EMPLOYERS?
This is one of several areas where the law around privilege and investigation reports is complex.
It is not unusual for a report or a disciplinary/grievance outcome to be drafted and then sent to lawyers for their legal advice. It is clear from this case that, where a document was not originally drafted for the purpose of legal advice, it will not retrospectively acquire privileged status. However reports drafted in order to receive legal advice on risk and content might be protected by legal advice privilege. The line between the two may be a fine one, and employers and their advisors should be mindful of the risk that drafts may be subject to disclosure in litigation.
