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In brief

The Employment Appeal Tribunal (EAT) has held that an original version of a grievance investigation report that did not attract legal advice or litigation privilege when it was drafted could not acquire privilege status retrospectively. 

Key Takeaways

  • This decision does not entail any change in the law but is a helpful reminder of the strict application of the rules on when a document might be protected under legal advice or litigation privilege.
  • In this case, after the original report was completed by the grievance investigation manager, the report was reviewed by the employer’s external legal advisors and amended with the manager’s approval. The manager also made some amendments of her own before the final report was sent to the employee. The employer conceded that the original report was not protected by legal advice or litigation privilege. However, it argued that the original report was retrospectively protected by legal advice privilege as the disclosure of the original report would enable the employee to compare the two versions and infer what legal advice had been given. 
  • The EAT noted that this argument was unsupported by authority and dismissed the employer’s appeal. The original report could not retrospectively attract privilege. In addition, the EAT also considered that it would be difficult to infer what legal advice had been given simply via a comparison of the two versions particularly as the manager had also made her own amendments to the original report that were unrelated to the legal advice. 
  • This case shows the importance of carefully planning any investigations and to give proper consideration at the outset on privilege so that you can prepare accordingly. 

University of Dundee v Chakraborty

For advice or to discuss what this means for you and your business, please contact your usual Baker McKenzie contact.


Monica Kurnatowksa is a partner in the Firm’s London office. She is recognised by The Legal 500 and Chambers UK as a leading individual. Chambers say she has “impressive experience of handling complex employment disputes and advisory matters for major clients. She is known for her expertise in trade union matters.” "The breadth of her experience is phenomenal." "She is an outstanding lawyer who provides a first-class service while juggling the intense demands of running high-profile matters on behalf of her clients. She is unflappable, courteous and extremely knowledgeable”. Monica is a member of the Consultation Board of PLC Employment On-line and is a regular speaker at internal and external seminars and workshops.


Kim Sartin is a partner in Baker McKenzie's Employment and Compensation team in London and a Member of the Firm’s Global TMT Group SteerCo. She is ranked as a leading individual in Chambers, as Up and Coming for Industrial Relations and recognised for her experience in the TMT sector (Chambers Global, UK). She is described as “a true global partner” who “stands apart with her business acumen”.


Mandy Li is a Knowledge Lawyer in Baker McKenzie London office.

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