How legal privilege is applied during the investigation process

Communication between a client and their solicitors for the purposes of getting legal advice, and any documents prepared for the purposes of litigation, are ‘privileged’.

This means that they do not have to be disclosed to the other party during any legal proceedings. In University of Dundee v Chakraborty, the employer argued that an original grievance investigation report acquired retrospective privilege and therefore did not need to be disclosed in proceedings.

The employee had raised a grievance against his line manager about bullying and discrimination. A University colleague was appointed to investigate the matter and produced an original report (though did not send it to the employee). The employee lodged tribunal proceedings. The University took legal advice on the investigation report and changes were recommended. Those changes were made, and the investigating officer also made changes of her own. That amended report, marked as having been amended following legal advice, was disclosed to the employee.

He asked for the original version of the investigation report, but the employer refused, saying it was privileged. They said a comparison of the original report with its later version would reveal the legal advice that had been provided – as such the original document acquired privilege retrospectively. The employment tribunal agreed so the employee appealed.

The EAT said that it was not possible for a document to acquire privilege retrospectively. Here, the later report may have been privileged. However, the original report was not prepared for the purposes of getting legal advice, nor was it prepared in contemplation of litigation. The fact that a comparison may show what advice was received was irrelevant. However in this case, on the facts, the investigator had made her own changes between versions 1 and 2 of the report and so any changes made by way of legal advice would not be discernible from those simply made on her account.

Employers often seek advice on the content of investigation reports during grievances and disciplinary processes, in cases where they are expecting or involved in litigation. Although the advice may be privileged, the original investigation report will not be. This highlights the importance of getting investigations right first time, which means having a sound workplace procedure and investigating officers who are well trained and confident in conducting investigations.

To discuss your grievance or disciplinary process further, please contact Oliver Tasker. Or click here to view our employment law page.