The Claimant in this case worked for Dundee University as a Research Assistant. The Claimant raised a grievance with his employer with claims of harassment, bullying, discrimination, and racial abuse. An investigation report was produced, and this was sent to the Respondent’s solicitors to check over. They, in conjunction with the University’s own internal legal team, discussed and approved amendments to the report. The amended version of the report was included in the bundle of documents that was submitted to the Employment Tribunal, but the original was not.
The report stated, “This report was amended and reissued on 23.06.2022 following independent legal advice.” The Claimant requested that the Respondent disclose the original version. The Respondent refused because they claimed it was protected by legal advice privilege.
Legal advice privilege is the concept that communications between a client and a lawyer ,who is giving legal advice, must remain confidential. The Employment Tribunal disagreed with this argument and the Respondent appealed this decision.
The Employment Appeal Tribunal did not allow the appeal. The Respondent agreed that the document was not legally privileged when it was first created but claimed it became privileged retrospectively when the lawyers gave advice on it. They stated that the amendments would make it clear what advice they had received from their lawyers. The Appeal Tribunal disagreed with this as the document was not created in anticipation of any litigation. If it was, then this would attract legal privilege. This document could not retrospectively become privileged. They also commented on the fact that the investigating officer had made some amendments of their own, and it would be difficult to tell which amendments were made by the lawyers and which were not. Therefore, the Respondent was ordered to disclose the original version.
For employers this case serves as a reminder that while they are free to get legal advice on grievance and disciplinary investigations this will not mean that the investigation documentation is in of themselves legally privileged. A document does not become privileged just because advice is sought on its contents.
If you have any questions on any of the issues raised in the above article, please contact Natalia Milne.