University of Dundee v Chakraborty
In this case, the Mr Chakraborty (the claimant) raised a grievance under their employer’s Dignity at Work Policy which was investigated by member of the academic staff. The investigation was completed, and the investigation report was prepared but not shared with the claimant. At this point, the claimant submitted a claim to the Employment Tribunal, for race discrimination and harassment.
Before sharing the report with the claimant, the University of Dundee (the respondent) sent the report to external legal advisers for review, who suggested several amendments, which the investigator accepted and also made some further amendments of their own. The report was then provided to the claimant as part of the internal procedures.
The report stated on its first page that it was “amended and reissued on 23.06.2022 following independent legal advice.” The claimant, however, had not seen the original version of the report as it had not been disclosed to them. This led to the claimant applying for the original report to be disclosed.
The respondent objected to this, citing that the original report was protected by LAP and arguing that by allowing disclosure of the original report, comparisons could be made between the two versions of the report and inferences could be made about the advice given. The Employment Tribunal disagreed and made a disclosure order. This resulted in the respondent appealing the decision to the EAT.
The EAT dismissed the appeal, noting that the respondent accepted that neither LP nor LAP applied to the original report at the time of its creation in that the original report was not created in contemplation of litigation but as part of the investigation under the respondent’s Dignity at Work Policy. The respondent argued that LAP applied retrospectively, as advice was sought on the content of the original report. The EAT disagreed with this argument finding no legal authority to support this position. It held that privilege could not be applied retrospectively and noted that the investigator had made their own changes to the report after the receipt of the legal advice, so did not know how inferences would be made about the advice given.