28 June, 2023
The recent Scottish case of The University of Dundee v Chakraboty highlights the importance of understanding the rules of legal advice privilege, specifically how and when it applies. In this case, despite what the University believed, the first draft of a grievance investigation report was not legally privileged and had to be disclosed. This left the University exposed, as communications that they thought were private were to be revealed to the aggrieved employee in the context of an employment tribunal claim.
Mr Chakraboty worked at Dundee University as a post-doctoral research assistant from 2013 until 2021. In November 2021, he raised a grievance under the Dignity at Work policy on the basis that he was being discriminated against as a result of his race; he also included alleged acts of bullying and harassment. An investigation was carried out by an employee at the University and submitted to the University in February 2022. Before providing Mr Chakraboty with the investigation report, the University asked for external legal advisers to review the report. This resulted in various amendments being made to the report between March and June 2022, some of which were a direct result of the legal advice.
Mr Chakraboty soon resigned and brought claims in the employment tribunal for unfair constructive dismissal and race discrimination. The University provided the investigation report as part of their tribunal bundle - it was dated February 2022. The report also included a footnote which stated that amendments had been made since it was first created in February 2022. Upon seeing the footnote, Mr Chakraboty asked to see the original version of the report as he believed it might support his claim for discrimination. However, when asked to produce the report, the University declined and said that the report was protected by legal advice privilege.
The employment tribunal found that the original report was not protected by legal advice privilege as it cannot be applied to documents retrospectively. Unhappy with this decision, the University appealed to the Court of Session.
After reviewing the facts of the case, the Court of Session dismissed the appeal and agreed with the tribunal's decision that the original investigation report was not legally privileged. Rather than basing their decision solely on the principle that legal advice privilege cannot be applied retrospectively, the Court of Session concluded that legal advice privilege would not apply as it was not possible to deduce the contents of the legal advice by only comparing the two drafts, and that the University had waived any legal privilege advice both by revealing the contents of the advice to their internal investigator and also by including the footnote in the final report, which made the existence of the first report known to Mr Chakraboty.
Being aware of the rules of legal advice privilege is of the upmost importance when ensuring that parties are not subject to any unexpected disclosures. To clarify, legal advice privilege applies when the communication or document is confidential and where the communication is between a client and their lawyer. In addition, the purpose of the document when it was created must have been the giving or obtaining of legal advice.
Employers should be aware of the limits of legal privilege and understand that the circumstances in which it will apply are fact specific. It should never be assumed that all documents will be subject to privilege once legal advisers are involved, or that it will apply retrospectively to versions of a document which have later been advised on by lawyers, but which were originally drafted by non-legal members of the organisation, such as managers or HR officers.
From a practical perspective, employers should seek legal advice from the outset of any investigation process around the extent to which documents produced as part of that investigation will later become disclosable, or where there is any uncertainty in regard to the application of legal advice privilege. Additionally, if employers wish to obtain the recommendations of lawyers in relation to a grievance report and for these discussions not to be disclosed, it may be that they can have a telephone discussion in the first instance, although it should be remembered this may have limitations and the version of the report which is being discussed may still be disclosable at a later stage. Involving lawyers from the outset may also extend the scope of legal privilege to an investigation process and the documents produced as part of it. Finally, employers should always consider very carefully how widely they share a draft investigation report, as arguably, the more people who view the report (especially if it is not essential they see it) the less likely it is to be confidential, a key element of attracting legal advice privilege.
For more information contact Laura McHugh in our Employment & HR department via email or phone on 0161 918 0008. Alternatively send any question through to Forbes Solicitors via our online Contact Form.
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