Draft investigation reports — can they be disclosed as part of Tribunal proceedings?

This was considered in the Scottish Court of Session (Inner House) in the case of University of Dundee (Respondent) v Chakraborty (Claimant).

Background

The Claimant was employed by the Respondent as a post-doctoral research assistant to one of the Respondent’s professors. In November of 2021, the Claimant raised a grievance against the professor under the Respondent’s Dignity at Work Policy. The Respondent appointed one of their academic staff to conduct the grievance investigation and produce the final report of their findings.

In December of 2021, before the grievance investigation was concluded, the Claimant lodged a claim with the Employment Tribunal against the Respondent and the professor for unfair dismissal, constructive dismissal, and racial discrimination.

The assigned investigator issued their report to the Claimant in February of 2022. The final report had a footnote stating that it had been “amended and reissued on 23.06.2022 following independent legal advice”.

The Claimant applied for disclosure of the original draft report. This was refused and therefore the Claimant made an application for specific disclosure.

The Respondent opposed the application stating that the comparison of the original with the final version would reveal the legal advice given to the Respondent. They claimed retrospective legal advice privilege and litigation privilege over the original report. The Tribunal rejected the argument and the Respondent appealed to the Employment Appeal Tribunal (EAT).

The EAT refused the appeal stating that the original report was not covered by the legal advice privilege, and it did not apply retrospectively. The Respondent appealed the EAT’s decision.

The legal bit

All documents that are in a party’s possession or control are required to be disclosed as part of employment tribunal proceedings; this also applies to documents which are not helpful. An exemption to this rule is where the information is legally privileged. There are two types of Legal Privilege:

1. Legal advice privilege covers all communications between the client and their lawyer pertaining to legal advice. It also extends to documents produced later that could be said to have reproduced, summarised, or otherwise paraphrased the original legal advice.
2. Litigation privilege extends to all communications which came into existence for the use in the process of litigation.

This case concerned legal advice privilege.

Loss of privilege

The Inner Session held that the legal advice privilege was lost in two instances. Firstly, when revealing the advice to the internal investigator and secondly, when the Respondent identified in the footnote the existence of the original report.

The Respondent was required to disclose the draft report to the Claimant.

Conclusion

Workplace disputes have significantly increased over the last few years. May of which are complicated and quite rightly employers have sought legal advice and input at an early stage. This case highlights that legal advice privilege can be lost if appropriate safeguards are not put in place.