The effective investigation of grievances and disciplinary matters is an important area for all employers and can be challenging for a variety of reasons. The recent case University of Dundee -v- Chakraborty sheds light on application of legal privilege in investigation processes and highlights some important points for employers to note.
Background
In this case, the Claimant (Mr Chakraborty) raised a grievance on 10 November 2021 regarding alleged harassment, bullying and racial abuse by his line manager. The grievance was investigated under the employer’s Dignity at Work and Study policy (the Policy) and a draft investigation report was completed internally on 28 February 2022. Later, in March 2022, the employer obtained legal advice and amendments were made to the investigation report including by the investigator. The investigation report was finalised in June 2022 and a final version of that (amended) investigation report was sent to the Claimant.
ET Claim
Whilst the investigation was being undertaken, the Claimant presented a claim to the Employment Tribunal on 21 December 2021, alleging unfair constructive dismissal and race discrimination. An ET hearing was scheduled and a copy of the grievance investigation report was included in the hearing bundle. This copy of the investigation report whilst dated February 2022 contained a footnote stating ‘amended and reissued on 23.06.2022 following independent legal advice.’
At the ET hearing, the Claimant requested a copy of the original version of the report (i.e. before it had been amended). The employer refused claiming the original version was protected by legal (advice) privilege. In particular, it was submitted, that production of the original version of the report would permit a comparison to be made between the two versions, which could then enable inferences to be drawn about the legal advice that had been given to the employer. The ET did not accept the employer’s position and held (a) the fact that the employer had taken legal advice on the original report did not make it privileged, (b) it was highly relevant to the claim and should be disclosed and (c) made an Order for its disclosure.
Appeal – EAT
The employer appealed, and asserted the original investigation report should not be disclosed because it was subject to legal advice privilege and litigation privilege. The employer asserted that although the original investigation report was not legally privileged when created, privilege was retrospectively applied when disclosure of the original report would indicate the advice given by the employer’s solicitors.
Legal advice privilege applies to confidential communications which pass between a client and their lawyer and which have arisen for the dominant purpose of giving or receiving legal advice. Litigation privilege applies to correspondence/documents between/created by a lawyer and client and/or third party for the dominant purpose of litigation (which is pending, reasonably contemplated or existing) and is confidential.
The Employment Appeal Tribunal (EAT) determined that the original report was not protected by either branch of legal privilege. In summary, because it did not qualify as a communication between a client and a legal advisor for the purpose of legal advice, and nor was it a document created in anticipation of litigation. Rather, it was an investigative response to a grievance raised by the Claimant under the employer’s policies.
Moreover, the EAT emphasised that there was no legal precedent suggesting that an originally unprivileged document could acquire privileged status retroactively, even if comparing it with the final version could potentially reveal differences and allow inferences to be drawn. Additionally, as the employer’s internal investigation team made amendments to the report after seeking legal advice, it was impossible to ascertain whether these changes were prompted by the legal advice or were unrelated.
Appeal – Court of Session
The employer appealed the EAT’s decision to the Court of Session (CoS), which refused the appeal. The CoS agreed with the principle established in an earlier case that ‘… it ought to be possible to say of any material at its creation whether or not it is privileged from disclosure. Its status ought not to depend upon the use subsequently made of it…’ and noted that whilst confidentiality will extend to material that would allow a reader to work out the legal advice given, the original investigation report here did not do that and whilst the Claimant might be able to work out what legal advice had been given this was because the employer had revealed the existence of such advice (i.e. by the footnote in the report).
The CoS found privilege had been waived by the employer in any event, most probably when the advice obtained was revealed to the investigator and certainly once it became known (via the footnote) the original report had been altered as a result of the advice.
Points to take away
Grievance and disciplinary investigations are primarily conducted to gather facts and not typically for seeking legal advice or in connection with litigation.
This case is a useful reminder for employers on the limitations of legal privilege in the context of such processes and that seeking legal advice on an investigation/the content of an investigation report will not automatically mean legal privilege applies and therefore the initial drafts of investigation reports may be disclosable in a subsequent litigation process.
Employers should consider carefully when and on what basis they seek legal advice on investigation processes and the terms of any investigation report. They should also take care in the handling of investigation reports, so as to reduce the risk of inadvertently waiving any legal privilege that may exist. In complex/sensitive cases it would be prudent to seek legal advice from the outset and before any steps are taken internally.
The Hill Dickinson Health Employment team has significant experience of supporting health-care clients with challenging and highly sensitive investigation processes, so please do not hesitate to contact us if you need support.
For further information, please contact:
Fiona McLellan, Partner, Hill Dickinson
fiona.mclellan@hilldickinson.com
