In a case between the University of Dundee v Chakraborty, the Employment Appeal Tribunal (EAT) has held that an employer could not withhold disclosure of an original investigation report, which a legal adviser had subsequently amended. It was not possible for the employer to argue that the original grievance investigation retrospectively became legally privileged after the employer’s legal advisors amended it.
What Happened in this Case?
Following a grievance raised by Mr Chakraborty against his manager at the University of Dundee, alleging, among other things, harassment, discrimination and racial abuse, an internal investigation was carried out. Before the investigation report was produced, the claimant had commenced proceedings in an employment tribunal. The report was reviewed and several changes were suggested by the University’s legal advisor before it was disclosed to the claimant. Crucially, the investigator also made some of her own amendments. A note on the first page of the report stated that the report had been ‘amended and reissued’ following independent legal advice.
At the outset of the tribunal hearing, the claimant applied for disclosure of the original version of the investigation report but this application was resisted by the University on the grounds that it was protected by legal advice privilege. It argued that comparing the original and amended version could allow the content of the legal advice to be ascertained. The tribunal rejected this argument and made an order for disclosure of the original report.
The EAT’s Decision
The University appealed unsuccessfully to the EAT, which upheld the employment tribunal’s decision that the original investigation report was disclosable and not protected by legal privilege.
In reaching this decision, the EAT rejected the University’s argument that legal advice privilege applied to the report retrospectively; there was nothing in case law to suggest that a non-privileged original document can acquire privilege status retrospectively. In any event, given that the investigator had made her own amendments to the final report, the EAT questioned how it would be possible to ascertain what legal advice was given as the final version was a mix of changes made upon legal advice and unconnected changes made by the investigator.
The Takeaway for Employers
This case is an important reminder to employers that the contents of reports produced for internal procedures are generally discoverable in subsequent employment tribunal proceedings. Employers should engage legal advice at an early stage, and before any versions of key documents are produced to benefit from legal advice privilege.
Speak to a solicitor from our experienced Employment Law team, if you require legal guidance.
