In the case of The University of Dundee v Chakraborty, the court found (a) that the first draft of a grievance report prepared by an impartial investigator was not legally privileged; and (b) although legal advice was obtained on that first draft leading ultimately to a final version, that subsequent legal advice did not make the original draft confidential even though a comparison of the two documents might provide some clues as to what legal advice had been given. This meant that the initial drafts had to be disclosed to the Claimant in the course of a discrimination claim in the Employment Tribunal.
In this case, Mr Chakraborty submitted a grievance. An internal investigator prepared an initial report and submitted it to the University. The University then sought external legal advice on the report, which led to various amendments being made as a result of that advice. The court found that the original report was not subject to legal advice privilege and had to be disclosed to Mr Chakraborty.
The court found it was not possible to deduce the contents of legal advice simply from comparing the two drafts (although this was open to speculation). Additionally, the court recognised that the University had waived privilege in any event by revealing the contents of its advice to the investigator, and by flagging the existence of the advice on the earlier draft in a footnote in the final report provided to Mr Chakraborty.
In light of this case, what do employers need to consider when conducting investigations?
1. Employers should be clear on how privilege applies. Documents that attract legal advice privilege or litigation privilege do not have to be disclosed to the Employment Tribunal. But take care – these terms have narrow meanings.
- For legal advice privilege to apply to a document or communication, the content must be confidential, be between a client and its lawyer and the dominant purpose of the document must be in order to give or receive legal advice.
Consequently, there are a number of health warnings to consider when relying on legal advice privilege. If you manage investigations internally, take care when sharing initial drafts. Legal advice privilege may not apply to draft reports, even if you take advice on the contents later. The situation may be different if the draft is produced and shared with the solicitors for the purpose of the investigator taking legal advice on the report.
If you use external non-legal third parties to manage your investigations, documents and communications shared with the investigator are unlikely to be protected through legal advice privilege, even with a solicitor copied to the exchange. Further, sharing legal advice received with an investigator can amount to waiving the protection of privilege for the document altogether.
- Litigation privilege applies to a wider pool of custodians than legal advice privilege, as it covers exchanges between a client and its lawyer, and also between either of those parties and a third party. As a result, litigation privilege is different, as it may protect internal drafts exchanged where neither party is a lawyer.
However, litigation privilege will only protect confidential material which is made for the dominant purpose of litigation, which is pending, reasonably contemplated or existing. The general risk of potential litigation that arises simply from managing an internal process is not enough – there has to be a real threat of a claim.
Had Mr Chakraborty threatened the University with potential claims in his initial grievance, it is possible that litigation privilege could apply to internal correspondence around the amendments to the grievance reports. However, the court would have had to consider if the dominant purpose of the first draft grievance report was for impending litigation. This is unlikely here, given the dominant purpose of the report was to respond to the grievance that had been raised by Mr Chakraborty.
2. Investigations should be carefully planned and organised.
Employers should carefully consider how they will manage an internal process and investigation at the outset, including who will be responsible for the investigation and how their recommendations will be passed to the employer. This is particularly the case where the matter is likely to be contentious and legal advice is required alongside that process. Care should be taken when identifying internal or external investigators as appropriate, given that privilege can be "waived" altogether depending on who is appointed. We recommend that employers take legal advice on this approach from the outset.
3. Employers should take care not to inadvertently "waive privilege".
- Here, the existence of a footnote in the final report which stated: "amended and reissued on 23.06.2022 following independent legal advice", was enough to have led to a waiver of privilege. This is the hardest part of the Judgment to understand but if nothing else, the footnote flagged that the report had been amended following legal advice which encouraged the Claimant in his suspicion that the original version contained findings which had been altered to assist the person he accused of discrimination.
- Recognise that speaking to internal stakeholders about the legal advice you have taken can be enough to waive privilege. The court here has determined that the University waived privilege by revealing the legal advice to the investigator, who was a member of staff. Take care to keep advice confidential and limited to those instructing solicitors where required.
4. Employers should ensure they are consistent when it comes to data subject access requests.
Legal professional privilege is one of the grounds when disclosure of personal data can be withheld from disclosure in an access request, which we often see as pre-disclosure fishing expeditions. Employers should ensure that they are consistent in recognising privileged documents and information in both tribunal disclosure and in how they manage data subject access requests, to prevent inadvertent disclosure.
If you are conducting a potentially contentious investigation and require further advice on how to manage that process, or if you would like to discuss any of the above further, we would be happy to hear from you.
Sign up to our email digest