Investigating officers in grievance and disciplinary matters are typically supported in their task by HR. They may also be supported – particularly in more serious or sensitive cases – by legal advisers, either in-house or external. The EAT’s recent decision in University of Dundee v. Chakraborty  EAT 150 highlights a short but important point surrounding the privilege of documents created as part of internal investigation processes.
Facts and decision
The case concerned a post-doctoral research assistant who had raised a grievance with his line manager alleging harassment and bullying, discrimination, and racial abuse. An investigating officer was duly appointed to investigate the grievance and produce a report. They did that, although the report was not initially sent to the complainant. After the preparation of the report, external solicitors were asked to review it and made various amendments which were approved by the investigating officer (who herself also made some changes). The report was eventually issued on 26 June 2022, and it stated: “this report was amended and reissued on 23.06.2022 following independent legal advice”.
At Tribunal, the Claimant applied for disclosure of the earlier versions of the report. The University resisted that application on the basis that it said the earlier versions were privileged because disclosure would “permit a comparison to be made between the two versions which could then enable inferences to be drawn about the legal advice that had been given to the [University] by its solicitors.” The Tribunal rejected that argument and ordered disclosure. The University appealed.
It was accepted by the University that the document attracted neither legal advice nor litigation privilege at the time it was created. But it was suggested that it attracted legal advice privilege after advice had been given about it. The University emphasised the fact that if the original version of the report were disclosed, it would be possible to infer what legal advice had been given; it described this as an instance of “jigsaw identification” of the legal advice.
The EAT rejected the University’s submissions. Lord Fairley considered the relevant authorities on privilege in this area (noting that there is no significant difference between the Scottish and English approach to legal professional privilege) and distinguished the case from previous authorities that were said to support the University’s position. He found that there was no principle of law that an unprivileged original version of a document can retrospectively acquire privileged status. He concluded:
“The terms of any advice given by the solicitor about the original document and any amended version of the original document created for the purpose of the litigation would plainly be privileged. The original un-amended document was not, however, privileged did not retrospectively become so even if an incidental consequence of its disclosure and comparison with the disclosed final version might be to allow inferences to be drawn about any differences which there may be between the two versions.”
The appeal was therefore dismissed and the order for disclosure of the original report stood.
There can be a tendency to assume that when one is engaged in a formal process like conducting a disciplinary or grievance that there is some level of protection afforded to the process. But that isn’t the case. Documents and communications relating to these processes will typically be disclosable in full in future proceedings.
Where there is a particularly sensitive matter being investigated and it is anticipated that the outcome may have wide fallout or consequences, it may be wise to engage with legal advisers for the purposes of obtaining advice before attempting a draft report or outcome. An early meeting or email exchange to obtain advice may allow potential risk areas to be explored, and to reduce the possibility of documents being produced which subsequently have to be revised extensively. The more significant the changes to the documents, the more scope there may be for the employee to impugn the writer’s methodology and conclusions.
From an employee’s perspective, it may be a strategic tip to seek disclosure of earlier versions of reports if it is considered that these may exist. While there may be a reluctance to draw attention to these, a pointed question requiring an admission or denial of earlier versions may prove useful and could potentially offer some leverage.
The case serves as a reminder of the wider principle that internal grievance and disciplinary investigations are not inherently privileged. Investigating officers and decision makers would be wise to operate on the assumption (or at least the possibility) that any email etc. that they write as part of a such a process not for the purposes of obtaining legal advice may end up before an Employment Tribunal. And where legal advice is seen as necessary, seeking it earlier in the process may be a wise approach.