In Chakraborty v University of Dundee Mr Chakraborty raised a grievance with his employer, the University of Dundee. When he was provided with a copy of the grievance investigation report, it contained a note stating "this report was amended and reissued on 23.6.22 following independent legal advice". Mr Chakroborty asked to see the original draft report and the University rejected his request on the grounds that it was legally privileged. The University's position was that the original report, although not initially privileged, acquired retrospective legal advice privilege due to the amendments made. Their contention was that comparing the two versions of the report could reveal the nature of the legal advice received.
Both the Tribunal and the Employment Appeal Tribunal ordered the draft report to be disclosed. The University appealed to the Court of Session. There is no significant difference between the Scottish and English legal systems in respect of legal professional privilege.
The Court of Session refused the University's appeal. The issue was whether by including the footnote on the final version of the report, the original draft could be said to be confidential. While confidentiality generally extends to materials that allow the reader to infer the legal advice given, the original investigation report did not do that. Mr Chakraborty would only be able to work out what advice might have been given because the University itself had confirmed that the advice it had received influenced the final investigation report. The Court also held that the University had waived privilege by disclosing the legal advice it had received to the investigator, and also by confirming the original report had been altered as a result of the advice.
This case is a reminder of the scope and limitations of legal professional privilege, and the circumstances where it can be waived. It is important for employers to determine at the outset what involvement legal advisors will have in an investigation process, and to whom legal advice will be disclosed.