Is a Grievance Investigation Report Privileged?
In a recent case the Employment Appeal Tribunal (EAT) considered whether different versions of a draft investigation report needed to be disclosed in litigation.
Disclosure - a Right or a Privilege?
In Chakraborty v University of Dundee, Mr Chakraborty raised a grievance with the University and a member of staff was appointed to carry out the investigation. By the time the report was ready for publication, Mr Chakraborty had submitted an employment tribunal claim. The University asked external legal advisors to review the report before it was shared. The legal advisors suggested some amendments, which the investigator accepted. The investigator also made some further amendments of their own. The report, as amended, was then disclosed to Mr Chakraborty. However the first page of the report stated "Note: This report was amended and reissued on 23.06.2022 following independent legal advice".
Mr Chakraborty requested disclosure of the original report but the University refused on the grounds that that the original report attracted legal privilege. The University argued that if the original report was shared, then a comparison could be made between the two versions which would enable inferences to be made about what legal advice had been provided.
The tribunal rejected the University's submission and ordered the original report be disclosed. The University appealed.
The EAT's Decision
The EAT dismissed the appeal. At the time the original report was created it was not privileged and there was no basis for applying privilege retrospectively. The EAT noted that it was unclear how inferences could be drawn about the legal advice that was given by comparing the two versions of the report, as the investigator themselves had also made further amendments in addition to those suggested by the external legal advisor.
What Should Employers Do?
- It is important to keep careful control over the number of draft versions of grievance investigation reports. In many cases it may be best practice to have a single document which is overwritten when amended.
- In order to benefit from legal advice privilege employers must seek legal advice on the terms of the report at the time it is created.
- When preparing terms of reference for an investigation, it may be useful to include a provision allowing the investigator to seek legal advice if needed.
For further reference, see our previous article where we discuss whether documents created during an internal investigation are privileged.
For further information on grievance investigation reports please contact our Employment team, or complete the form below.