Why the case matters
In The University of Dundee v Chakraboty, the Court of Session (Inner House) agreed with the EAT that the first draft of a grievance investigation report was not legally privileged. It made on order for the report to be disclosed to an aggrieved employee who is bringing a claim for discrimination in the employment tribunal.
Usually, all documents in a party's possession or control which are relevant to a dispute must be disclosed to the other side in litigation, unless an exemption applies. One such exemption is that the material is legally privileged. There are two branches of legal privilege: legal advice privilege and litigation privilege. This case focused on legal advice privilege, which may be established if the following conditions are met:
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The communication or document is confidential.
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The communication is between a client and its lawyer.
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The dominant purpose of the document, when it was created, was to give or obtain legal advice.
The purpose of the rule is to give clients confidentiality, ease and security when dealing with their lawyers. If the rule is not understood correctly, it can leave a party exposed when communications it thought were privileged turn out not to be.
Facts
Mr Chakraborty was employed as a post-doctoral research assistant to a professor at Dundee University from 2013 to 2021. In November 2021, he raised a grievance under the Dignity at Work Policy, alleging race discrimination, including acts of bullying and harassment. An academic member of staff carried out an investigation and submitted the investigation report to the University in February 2022. The University then asked external legal advisers to review the report. Various amendments were made to the report, including as a result of legal advice, between March and June 2022.
Mr Chakraborty resigned and brought claims in the employment tribunal for unfair constructive dismissal and race discrimination. The investigation report was provided by the University as part of the tribunal bundle; it was dated February 2022 and there was a footnote saying that amendments had been made since it was first created in February 2022. Mr Chakraborty asked to see the original version of the report, believing it might be relevant to his discrimination claim. The University refused to produce the earlier version, saying it attracted legal advice privilege (referred to as 'confidential advice privilege' in Scotland).
The EAT found that the original report was not protected by legal advice privilege and that legal advice privilege could not apply to documents retrospectively.
The University made a further appeal to the Court of Session.
Decision
The Court of Session dismissed the appeal, agreeing with the EAT that the original investigation report was not privileged. Its reasoning was slightly different from the EAT, which had adopted a more singular reasoning that documents cannot retrospectively attract legal advice privilege. The Court of Session concluded that:
- In general, it should be possible on most cases to say at the outset whether or not a document is privileged.
- The University had rightly conceded that the investigation report was not privileged at the time of its creation.
- While there may be some instances where documents revealing the content of earlier legal communications attract privilege, this was not such a case. it would not be possible to deduce the contents of legal advice merely from a comparison between two drafts, although one might be able to speculate.
- In any case, the University had waived any legal advice privilege here, both by revealing the contents of the advice to its internal investigator, then by flagging its existence by way of footnote in the final report provided to Mr Chakraborty.
Why we should care
With sensitive investigations on the increase in many workplaces, it is important for employers and their advisers to understand the rules and limits around legal advice privilege. It is important to understand when the paper trail created by an investigation will and won't be exempt from disclosure.
One of the key aspects of legal advice privilege is that the dominant purpose of the communication or document must be to give or obtain legal advice. By its very nature, the purpose of a grievance investigation report will be to carry out an investigation and establish facts. As demonstrated here, the fact that legal advice is then obtained on that document will not make it privileged.
Employers may be lulled into a false sense of security if they involve lawyers early in an investigation involving allegations of discrimination or misconduct in the workplace, assuming that from that point onwards, all communications regarding the matter will be privileged. This is not the case. The particular communication or document must be tested against the established principles set out above.
Even where these conditions are satisfied, an employer may inadvertently waive privilege, so care is needed in how such a document is later handled.
In practical terms, employers who wish to obtain the recommendations of lawyers on a proposed grievance investigation report, should do so over the phone before finalising and producing such a report, if they do not want to have to disclose earlier drafts. On the other hand, it will surely be rare for drafting changes based on a lawyer's recommendations to reveal a 'smoking gun' which proves bias or discrimination. Lawyers need to be aware of their professional obligations when advising clients about which versions or drafts may be subject to disclosure.
