Is an investigation report privileged?

In any legal case, both parties have a duty of disclosure. This means they are required to show the other party all documents relevant to the case even if they are detrimental to the disclosing party’s argument.

However, some documents, such as those containing legal advice from a solicitor are exempt from this rule and do not need to be disclosed. These documents benefit from “legal professional privilege”.

There are two types of legal professional privilege:

• Legal advice privilege which protects communications between a legal professional and their client for the sole purpose of giving or receiving legal advice.
• Litigation privilege which protects the communications between legal professionals or their clients and any third parties for the purpose of obtaining advice or information in relation to existing litigation.

In a recent case, the Court of Session (Scotland’s supreme civil court) considered whether legal professional privilege applied to an investigation report.

University of Dundee v Chakraborty

Mr Chakraborty started employment with the University as a Post-Doctoral Research Assistant in January 2013. In November 2021, he raised a grievance alleging harassment, discrimination and racial abuse. An independent member of University staff was appointed to carry out an investigation and a report was made.

The report underwent various amendments in line with legal advice from the University’s solicitors. The report was then finalised and subsequently disclosed in the legal bundle to the Employment Tribunal (ET) with a footnote stating that the report had been “amended and reissued following independent legal advice”.

During ET proceedings, an application was made on Mr Chakraborty’s behalf requiring the University to produce the original version of the report. The University resisted the application stating that the original report was protected by legal professional privilege because comparing the two documents would reveal the legal advice that they had been given by their solicitors.

The ET concluded that the original report was not protected by legal professional privilege. The University subsequently appealed the decision to the Employment Appeal Tribunal, who upheld the ET’s decision.

The University further appealed the decision to the Court of Session, which also upheld the previous judgements. The report was originally created before any legal advice was taken and so therefore it did not have legal professional privilege. The document did not become privileged once the final version was disclosed. The Court reasoned that if Mr Chakraborty was able to deduce the content of the legal advice, this was only because the University itself revealed that the final report was amended following legal advice. Further, comparing the two versions would only allow Mr Chakraborty to speculate what the advice had been.

Even if the original report had benefited from legal professional privilege, this would have been waived when the University indicated in a footnote to the revised report that the original report had been amended following legal advice.

What can employers do?

This case acts as a reminder for employers that in-house investigation reports will not attract legal professional privilege. In addition, if the report is subsequently submitted to a solicitor for legal advice, it will not mean that the original report is privileged, nor will privilege be applied retrospectively.

Employers should also be cautious so as to not inadvertently waive privilege when it does apply. The broad distribution of legally privileged documents or incorporating references to legal advice when disclosing any documents may suggest that the legal professional privilege has been abandoned by the employer. They can therefore no longer rely on this defence or attempt to retrieve this protection at a later date.

To ensure that employers keep this protection, they should:

• Understand the scope. Employers should understand what types of communications are covered by legal professional privilege and that ensure that any discussions with legal advisors fall within this scope.
• Limit access. Employers should restrict access to privileged communications to only those individuals who need to know. This helps prevent unintended disclosure.
• Mark communications. Clearly mark any communications with legal advisors as “privileged and confidential” to indicate that they are protected by legal professional privilege. This helps to reinforce the privileged nature of the information and reduces the risk of unintended disclosure.
• Seek legal advice early. Employers should involve legal advisors early in matters that may require legal guidance. Seeking advice from the outset can help to ensure communications are protected from the beginning.

If you have concerns or questions about legal professional privilege, please contact our Employment Team by emailing employment@warnergoodman.co.uk or calling 023 8071 7717.