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In brief

A recent decision in the Scottish courts offers a stark warning of the need to consider issues of legal privilege at an early stage when conducting an internal investigation. In an article for HR Magazine, John Bracken and Paul Harrison explain what this means in practice for employers.


Key takeaways

  • Legal advice privilege applies to confidential communications which pass between a client and a client’s lawyer and which have come into existence for the dominant purpose of giving or receiving legal advice about what should be done in the relevant legal context.
  • In University of Dundee v. Chakrabotty, the Court of Session held that the first draft of an investigation report upon which legal advice was obtained was not privileged. A comparison between the two versions would not allow the employee to ascertain the legal advice given, only to “speculate” on which differences related to the legal advice and which were the investigator’s decision. The employer had also waived the privilege because the final report disclosed to the employee stated that the original draft had been amended following legal advice.
  • HR and those carrying out investigations should consider at an early stage whether legal advice may be required and to who is the lawyer’s client for privilege purposes.

This article was first published in the September/October 2023 edition of HR Magazine. Click here to read it.

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

Author

Paul Harrison practices mainly in the area of employment law and serves as counsel in Baker McKenzie's Employment Group in London. Paul is a regular speaker at conferences and seminars, and has contributed articles on myriad employment issues to various legal and personnel publications.

Author

John Bracken is an Associate in Baker McKenzie, London office.

Author

Rachel Farr is a Senior Knowledge Lawyer in Baker McKenzie, London office.

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