The Employment Appeal Tribunal (EAT) has held in University of Dundee v Chakraborty that a grievance investigation report did not retrospectively attract legal advice privilege when a later version of the report, as amended by the employer's legal advisers, was disclosed during tribunal proceedings.
The claimant had been employed by the University since January 2013, and in November 2021 he raised a grievance against his line manager which included allegations of harassment, bullying, discrimination and racial abuse. An independent member of academic staff (ND) was appointed to investigate under the University's Dignity at Work and Study policy. ND produced her report on 28 February 2022, by which time the claimant had already brought race discrimination and harassment claims in the tribunal. On 1 March, the University asked external legal advisers to review ND's report and some amendments were made which were approved by ND on 23 June. ND then made some further amendments of her own and the revised report was disclosed to the claimant and added to the tribunal bundle. The claimant applied for disclosure of the original, unamended report. The University resisted the application on the ground that the original report was protected by legal advice privilege. The tribunal made the disclosure order, and the University appealed.
The EAT dismissed the appeal. The University had argued that the original report retrospectively acquired privileged status as a result of advice having been given about it, but the EAT held that this was incorrect. The terms of any advice given by the University's legal advisers about the original document, and any amended version of that document created for the purpose of the litigation would be privileged, but the original unamended document was not and could not retrospectively become so.
Take note: This case is a reminder that legal advice privilege will only relate to confidential communications between a legal adviser and a client for the dominant purpose of giving or receiving legal advice. Any amendments to a document (which is subsequently disclosed) following the obtaining of legal advice will not mean that the original unamended document is subject to privilege. In this case there was no litigation privilege either as the original report had not been created in contemplation of litigation, but as part of an investigative response to a grievance under an internal policy.
