Legal privilege and draft investigation reports: University of Dundee v Chakraborty

In the case of University of Dundee v Chakraborty, the Employment Appeal Tribunal (EAT) considered the application of legal privilege, in particular legal professional privilege, to a grievance investigation report sent by the University to their solicitors to review and provide legal advice upon. 

A quick reminder on legal privilege

The general principal of legal professional privilege is that a party cannot be required to disclose evidence (such as written documents, emails or verbal evidence) to a third party or a court even if the document is relevant to the issues to be determined in legal proceedings. Legal professional privilege is split into two categories - legal advice privilege and litigation privilege.

Legal Advice Privilege

Legal Advice Privilege (LAP) applies to communications which are between a lawyer and their client where the purpose of those communications is the providing and receiving of legal advice.

For LAP to be claimed, two criteria need to be met. Firstly, the document or evidence in question must be confidential. Once that is established, if that document is then made more widely available, for example, to the public, you may no longer be able to claim privilege for that document, as it is no longer confidential.

Secondly, there must be a communication between the client and the lawyer, containing the (confidential) documents that are seeking privilege and it must stay between the client and lawyer; if it goes to a third party, it may no longer be covered by LAP. The communication must also have come into existence for the main purpose of giving or receiving legal advice. This means that any documents that were created as background, may not benefit from privilege if they existed before the need to seek legal advice arose.

Litigation Privilege

As with LAP, in order for Litigation Privilege (LP) to apply, there are certain criteria that must be met.

Firstly, again the communication must be between the lawyer and client or between either the lawyer or client and a third party. Secondly, the dominant purpose of that communication must be for the purposes of litigation either pending, reasonably contemplated or existing at the time of the communication.

In other words, the litigation must have a real likelihood of arising, but it does not need to be greater than 50%. The distinct possibility of litigation or a general apprehension of future litigation is not enough for LP to apply. Finally, as with LAP, there must be confidentiality.

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.

Key takeaways

This case highlights the need for care when dealing with situations where you are seeking advice and/or there is a significant chance that litigation will commence as a result of internal processes or decisions.

It is important that legal advice received is kept confidential and is not shared within your organisation more widely than is necessary.  Legal advice shared with your senior executive team or with those staff that need to be aware of the purposes of their work should still retain LAP, but recipients should be reminded of its confidential nature and to treat the documents/communications as such. 

Employers should also consider involving their legal advisers earlier in their investigation process to support an argument that the initial draft is being prepared with the view of seeking legal advice. This is especially true with grievance and disciplinary processes that could result in legal action from an employee. Acting too late, as seen in Chakraborty, may result in key documents not being protected.