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Employers should bear in mind that internal grievance investigation reports will usually not be privileged and so will be disclosable at tribunal. A recent EAT ruling held that the original version of an internal report, which was not privileged at the time it was prepared, did not later acquire legal advice privilege simply because comparison to the final version disclosed in tribunal proceedings would reveal legal advice taken on the contents of the report.
In University of Dundee v Chakraborty, Mr Chakraborty raised a grievance in relation to harassment and race discrimination under the University of Dundee’s internal Dignity at Work Policy. The investigation was initially carried out by a member of academic staff and a report prepared. Following Mr Chakraborty’s submission of a tribunal claim and before disclosing the report, the University sought external legal advice on its contents. That legal advice suggested amendments, which were made along with some further changes by the author, and the amended version of the report was then disclosed with a note on it stating that it had been amended and reissued following independent legal advice. Mr Chakraborty’s application for disclosure of the first version of the report.was granted. The EAT ruled that the original version of the revised grievance report was not capable of retrospectively attracting legal advice privilege, notwithstanding the possibility that inferences could be drawn concerning the nature of legal advice given to the University by comparing the two versions.
Depending on the circumstances, it may be possible to claim privilege over early drafts of a report clearly prepared for the purpose of obtaining legal advice or in the context of pending litigation. However, it will not be possible to retrospectively apply privilege to a report which was not protected at the time of its creation. See our HSF Litigation Notes blog post for further details.
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