When does legal privilege apply? Recent EAT case acts as a helpful reminder
In University of Dundee v Chakraborty [2022] EAT 150 the Employment Appeal Tribunal ("EAT") held that an employer could not withhold disclosure of an original copy of a grievance investigation report, which was subsequently amended by solicitors, that attracted neither litigation nor legal advice privilege.
What is legal privilege?
By way of reminder, there are two main types of legal privilege: Legal Advice Privilege ("LAP") and Litigation Privilege
LAP applies to confidential communications:
- which pass between a client and the client's lawyer; and
- which have come into existence for the dominant purpose of giving or receiving legal advice about what should prudently and sensibly be done in the relevant legal context.
Litigation privilege applies if the material in question is:
- a communication between the lawyer and the client, or between either of them and a third party (or be a document created by or on behalf of the client or the client's lawyer);
- made for the dominant purpose of litigation;
- relates to litigation which is pending, reasonably contemplated or existing; and
- (in most and arguably all cases) is confidential.
What happened in this case?
Mr Chakraborty was a research assistant employed by the University of Dundee. Prior to issuing an Employment Tribunal claim, he raised a grievance with his Line Manager at the University. Following the production of the grievance investigation report, the University consulted solicitors, who subsequently amended the report.
The University did not disclose the original, unamended version of the report, believing that it was protected by LAP. Their argument was that disclosure of the original report would allow a comparison to be made between the original and subsequent version of the report and reveal the nature of the legal advice obtained. It was important to note that the original report had not only been reviewed by external solicitors, but also by a Professor at the University who was leading the investigation process.
Mr Chakraborty applied for disclosure of the original report. This was resisted by the University on the basis that inferences could be drawn surrounding the nature of the legal advice received. The University, having been ordered to disclose the report, appealed the decision to the EAT.
The EAT concluded that there was no basis for a non-privileged original version of a document to obtain privileged status retrospectively. In addition, the fact that the Professor had also amended the final report, furthered the EAT’s view that it would not reveal legal advice.
The key takeaway here is that even if disclosing the original version would allow Mr Chakraborty to draw inferences about the legal advice received, this would not render the original report retrospectively privileged. The original report had not been created in contemplation of litigation, and accordingly did not attract litigation privilege, nor did the original report attract retrospective LAP.
Practical takeaways
- To maximise the chances of attracting legal privilege from the outset of any grievance, disciplinary or investigation process, employers would be well advised to involve legal counsel at the earliest possible stage.
- This judgment shows that by taking on board legal advice once the process has already started and once original reports have already been drafted, will not allow the existing documents to be covered by legal advice privilege retrospectively. Instead, it will allow a comparison between the final and original versions of the documents which may result in inferences being drawn about the legal advice.
- While not specific to this case, a general point on privilege for employers to remember is the importance of maintaining privilege. Staff should be aware not to inadvertently waive privilege by circulating privileged documents too widely within their organisations (e.g. forwarding on privileged documents to colleagues) and that close control should be kept of privileged documents – how they are stored and shared.
- Remember that any documents produced, which are not covered by legal privilege, will be disclosable in the Employment Tribunal (and a data subject access request) – a reminder to be extremely careful what you commit to writing in any format that includes emails, texts, instant messages, WhatsApps etc!
If you have any questions on the topics covered in this alert please contact Paul Reeves, Leanne Raven or Eirini Haidemenos.
