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The Employment Appeal Tribunal (EAT) has held that legal privilege does not apply retrospectively to an original version of a report produced before legal advice was sought. But, practically, what does this decision mean for employers?

What is legal advice privilege?

In short, legal advice privilege allows individuals and organisations to seek legal advice in the knowledge that these communications will be confidential and that they will not have to be disclosed as part of any subsequent proceedings. Legal advice privilege may also extend to documents, or records, which make reference to these confidential communications.

What are the facts of this case?

The facts of University of Dundee v Charkraborty are not unusual: Mr Chakraborty raised a grievance and an independent manager was appointed to investigate that grievance. So far, so familiar to most employers. The investigating manager concluded her investigations and submitted a report to the University’s external solicitors for review. The solicitors recommended a number of changes to the report which were approved. The investigating manager also made a number of other changes before finalising the report. The finalised version of the report was the one which was disclosed to the Tribunal.

Mr Charkraborty argued that the University should be ordered to disclose the original version of the report. The University said that the draft was covered by legal advice privilege. The University also argued that if the original version of the report was disclosed, and compared against the final version, it would be possible for the parties involved to infer what legal advice had been provided by external solicitors. The Tribunal rejected these claims. The University appealed to the EAT against this decision.

The EAT dismissed the appeal on the basis that the report was not a communication between a lawyer and their client for the purpose of seeking, or soliciting, advice, but rather it was an investigation report in relation to a grievance raised under the University’s internal policy. On the facts, the EAT also didn’t agree that it easy to see how the content of legal advice could be inferred from simply comparing two versions of the same document. This was particularly the case where the investigating manager had also made amendments to the report.

What are the key takeaways for employers?

This decision is an important reminder that the contents of grievance reports are generally disclosable in Tribunal proceedings, as well for the purposes of data subject access requests. To benefit from legal advice privilege, employers must seek legal advice on the terms of the report at the point of creation; this may involve having a call with the relevant solicitor about what the report should include before pen is put to paper or a brief email to the solicitor to set out some initial thoughts before the draft is started. If a report is circulated internally before advice is sought, it may be too late to withhold it from disclosure on the grounds of privilege even if the report is revised later in light of legal advice.

Employers should also note that it can be beneficial for claimants to obtain initial versions of a report, as an amended report may evidence the influence of third-party advice. This can then provide compelling advice in litigation proceedings, particularly if a claimant is seeking to challenge the independence or impartiality of an investigation.

If a document isn’t covered by legal advice privilege, it is important to consider if litigation privilege applies (as this would also mean that a document wouldn’t need to be disclosed). This is a separate but related type of privilege which covers some communications where the dominant purpose is litigation and which relate to litigation which is ongoing or reasonably anticipated.

 

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