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.