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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.

Author

Monica Kurnatowska is a partner in the Firm's London office. She is a leading employment lawyer who is recognised by The Legal 500 and Chambers UK as a "highly respected, extremely impressive and an exceptional legal mind; she has a tremendous appreciation of the details." Monica is a member of the Consultation Board of PLC Employment Online and is a regular speaker at internal and external seminars and workshops.

Author

Kim Sartin is a partner in Baker McKenzie's Employment and Compensation team in London. She advises senior legal and HR professionals on a wide range of employment and data protection matters. Kim is also a member of the Firm's Compliance & Investigations Practice Group where she works with a multidisciplinary team of lawyers in managing the employment and privacy aspects of compliance investigations. Kim is a regular speaker at internal and external conferences and seminars on a range of employment, data protection and compliance topics. She is a frequent contributor to legal journals and a contributor to the Tolley's Discrimination Handbook. Chambers UK 2021 described her as "very responsive and knowledgeable; her guidance is clear, effective and to the point." "She is very client-focused, intelligent and calm under pressure." "She is great - helpful, proactive and always tries to find a solution." Chambers UK 2022 "She is business-focused, practical and gives practical solutions." "She is a very good lawyer who is very strong technically."

Author

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

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