The mutual disclosure of documents is an important part of the litigation process in the employment tribunal. However, there is an important exception that applies in relation to documents that have legal professional privilege, meaning that a party would not be expected to reveal the legal advice that they have received from their solicitor.
In University of Dundee v Chakraborty the Court of Session considered whether that privilege would apply to an original investigation report in circumstances where legal advice had led to a new version of the report being prepared.
Mr Chakraborty, a post graduate research assistant, had raised a grievance concerning harassment, discrimination and racist abuse.
Professor Daeid was asked to investigate the grievance as an independent person under the University’s dignity at work and study policy. The completed report was forwarded to the university’s external solicitors for review. Following the advice received, the professor made changes to the report. The revised version was disclosed with a footnote referring to the fact it had been “amended and reissued on 23.06.2022 following independent legal advice”.
In the employment tribunal proceedings that followed an application was made on behalf of Chakraborty for the original report to be disclosed alongside the final version. The university objected on the grounds that this would reveal the privileged legal advice that had been given by its solicitors.
The Court of Session upheld the decision of the Employment Appeal Tribunal that the original report should be disclosed. Given that it did not have legal professional privilege when created, it was not possible for it to become privileged at some later point even if as a consequence of its disclosure and comparison with the disclosed final version some inferences might be drawn about the reasons for the differences between the two versions.
While legal professional privilege can extend to communications that ‘evidence’ the subject matter of such communications or that reproduce or summarise the advice sought or received, the court was not satisfied that the investigation report fell into that category.
In any event it was considered that even if privilege had existed it had been waived by the manner in which the advice had been dealt with by the employer. It had probably been lost when it had been revealed to the professor carrying out the “impartial investigation” and it had been “certainly lost once it became known, as the footnote in the report stated, that the original report had been altered as a result of that advice”.
The decision highlights that investigatory reports prepared by employers will not attract legal advice privilege and, even if legal advice later leads to changes to the report, it will not mean the original is privileged as this cannot be applied retrospectively.
In practical terms it also shows the importance of considering what is done with legal advice that is privileged.
Employers should ensure that the circulation of documents is strictly limited to those who need to receive them. Wider distribution of the legal advice or expressly incorporating references to it into documents that are being disclosed may suggest that any privilege is being abandoned.
Given the increasing number of investigations being conducted into workplace incidents, particularly involving allegations of discrimination, the role any legal advisers will have in an investigatory process will need to be carefully considered at the outset.
In addition to limiting circulation and avoiding references to the advice that suggest privileged has been waived, it may also help to ensure that documents are clearly headed ‘privileged and confidential’. Although this will not guarantee that privilege will not be lost, it will indicate that the intention was to avoid disclosure in any subsequent proceedings.
Benedict Gorner is an employment partner at Gateley Legal