First draft of grievance investigation report had to be disclosed to employee as part of Tribunal proceedings (EAT)

James Williams

The EAT has held that legal privilege does not apply retrospectively, to protect an original version of an investigation report that attracted neither litigation nor legal advice privilege.

The Claimant raised a grievance under the University’s Dignity at Work and Study policy. The University appointed an independent member of academic staff to investigate the grievance and report. She did so on 28 February 2022. Thereafter, the University’s external legal advisors suggested that a number of changes be made to the report. The author of the report also made changes to it of her own before a final version of the report was lodged by the University with the Employment Tribunal shortly before an evidential hearing on the Claimant’s complaints. It was clear from an annotation on the lodged version that it had been revised following legal advice. The Claimant made an application for the original un-amended version of the report to be disclosed.

The EAT decided as follows:-

(1) Whilst both the terms of any advice given by the solicitor about the original document and any amended version of the original document created for the purpose of the litigation would plainly be privileged, the original un-amended document would not; nor would it retrospectively become privileged even if an incidental consequence of its disclosure and comparison with the disclosed final version might be to allow inferences to be drawn about why the two versions were different.

(2) In any event, it was difficult to understand how it could be said that it would be possible to infer what legal advice was given simply from a comparison of the 28 February 2022 document with the version ultimately lodged by the University. It was clear that the author of the 28 February 2022 report had made amendments of her own to it. It was not explained how it would be possible to distinguish between changes to the report made following legal advice and changes made by its author which were unconnected to legal advice.

Case: University of Dundee v Chakraborty [2022] EAT 150 (23 September 2022)

James Williams – Solicitor

James Williams

I am a qualified Employment Law and HR Solicitor. I specialise in acting for schools and advise on all aspects of employment law and HR including attending employee meetings, advising senior leaders, conducting redundancy consultations, drafting contracts of employment, advising on policies and procedures and negotiating settlement agreements.