In-depth
Privilege & investigation reports
It is a common misconception that simply involving lawyers in emails or documents will suddenly cause those emails and documents to become 'privileged', such that they do not need to be disclosed to either the Court/Tribunal or the other party in later proceedings, should they arise.
A recent example of an employer getting this wrong is the case of University of Dundee v Chakraborty. In this case, the employer tried to resist disclosing an earlier internal version of an investigation report on the basis that the later version (which had already been disclosed) had been amended by a lawyer (amongst others).
Background on privilege
If a document is privileged, it is protected from disclosure in court / tribunal proceedings.
There are two different types of privilege that can apply:
- legal advice privilege; and
- litigation privilege.
Legal advice privilege applies to confidential communications between a lawyer and a client prepared for the purpose of giving or receiving legal advice.
Litigation privilege applies to confidential communications between a lawyer and a client, or between one of them and a third party, made for the dominant purpose of use in adversarial proceedings (which must be, at the time the document was created/sent, reasonably contemplated, pending or existing).
Facts
November 2021
Grievance raised
Mr Chakraborty was a Post-Doctoral Research Assistant at The University of Dundee, who, in November 2021, raised a grievance against his line manager.
Mr Chakraborty alleged harassment and bullying, discrimination and racial abuse and suggested that his line manager had falsely accused him of fraud.
February 2022
Internal report produced
A professor of the University of Dundee’s School of Engineering and Science, with assistance and support from a member of the University’s HR department, investigated the grievance under the University’s Dignity at Work Policy and produced her report in February 2022.
March 2022
Review by external lawyers
Subsequently, the University asked external solicitors to review the report.
June 2022
Revised report finalised
As part of the review, amendments were made to the report by both the solicitors and the professor until the revised version of report was finalised in June 2022.
Proceedings before the Employment Tribunal
The University included the revised version of the report in the trial bundle but not the original report.
Mr Chakraborty applied to the Employment Tribunal for an order requiring the University to produce the original report.
The University resisted the application on the grounds that the original report was protected by legal advice privilege.
In particular, the University argued that the comparison of the original report with the revised version would reveal the nature of the legal advice received therefore the original report was subject to legal advice privilege.
The Employment Tribunal did not accept the University’s submission and ordered it to produce the original version of the report.
Appeal to the Employment Appeal Tribunal
The University appealed to the Employment Appeal Tribunal.
In its submissions, the University accepted that the original report attracted neither legal advice privilege nor litigation privilege at the time it was created but argued that it was subject to legal advice privilege, and also litigation privilege, after advice had been given about it and a new version produced. The University’s concern was that, by comparing the two versions, it would be possible to ‘reveal’ the legal advice given by the external solicitors.
The Employment Appeal Tribunal rejected the University’s appeal and the original report had to be disclosed.
There is [...] nothing [...] to support the proposition that an un-privileged original version of a document can acquire privileged status retrospectively.
Extract from the judgment of the Employment Appeal Tribunal at paragraph 31.
Key takeaways
Take care when creating documents at the investigatory stage
Documents, including emails and reports, created for the main purpose of investigating grievances raised by employees will usually have to be disclosed in subsequent proceedings (if they are relevant).
Given this risk, care should be taken as to what documents are created and also how they are phrased, whether emails, reports or texts/WhatsApp messages.
Take legal advice early on
For sensitive matters where proceedings are particularly likely, legal advice should be obtained early on in the investigative phase, ideally before any documents/reports are produced.
Whilst not every document will ultimately be covered by privilege, discussing these issues early on will help maintain privilege where it can be claimed.
