No, says the EAT in University of Dundee v Chakraborty (available here). If the original report is not protected by privilege in its own right, it cannot retrospectively gain privilege in this way.
Background: During Tribunal proceedings the employer and the employee need to send each other any documents relevant to the issues in dispute – this is known as ‘disclosure’. This includes any documents that damage the case, as well as those which help it. The underlying principle is that the Tribunal 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, brought a grievance against his line manager in respect of alleged harassment, bullying and discrimination. The grievance was investigated by a senior member of the employer’s (the University of Dundee) staff under its Dignity at Work and Study policy (with assistance from HR). Mr Chakraborty brought a Tribunal claim during that investigation.
Once the investigator produced her report it was sent (a few days later) 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. Although it accepted that the report was not originally protected, the employer argued that comparison with the amended version would enable inferences to be made about the legal advice given.
The Tribunal said that legal professional privilege did not apply and ordered the original report be disclosed. The employer appealed.
The EAT dismissed the appeal and said that the original report should be disclosed.
The report was not protected either 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 a investigative fact-finding report on an internal grievance. The EAT noted that the employer accepted this position.
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 make it privileged.
In any event, the EAT thought it difficult to understand how the legal advice could be revealed in this way as the investigator had also made her own amendments to the report, and it would be difficult to know which of the particular amendments were connected to the legal advice.
Implications: This decision is important confirmation to employers that original versions of internal investigation reports do not retrospectively gain legal professional privilege – even if comparisons with later versions may reveal legal advice.
It is also a good reminder to employers that on most occasions an original internal investigation report will need to be disclosed as part of Tribunal proceedings. Investigations are generally fact finding exercises and not undertaken for the purpose of obtaining legal advice.
That said, employers may try to argue that the original report is privileged if lawyers are already involved in advising on the investigation before the report is created. Particularly if they are the first to receive and review the report. However, this argument may not be successful and the best advice is to make sure that there is nothing to hide in the original report. In other words, take great care over its content and make sure that investigators are well-trained to avoid any legal pitfalls.