Investigation Reports - the disclosure dangers of different versions

The facts

In University of Dundee v Chakraborty [2022] EAT 150, the Claimant, Mr Chakraborty, raised a grievance against his line manager on 10 November 2021.  It included allegations of harassment and bullying, discrimination and racial abuse.   The University of Dundee (‘the University’) appointed an internal investigator on 30 November 2021 to investigate the grievance.

Whilst the investigation was ongoing, Mr Chakraborty commenced Employment Tribunal proceedings against the University.

The University’s internal investigator produced their report on 28 February 2022.  On 1 March 2022, the University asked its external solicitors to review it.  The solicitors suggested certain amendments, which were subsequently adopted by the investigator and incorporated into the final version of the report on 23 June 2022.  On the same date, the investigator also made some further amendments of their own, which were included in the final version of the report.

The original version of the report was not provided to Mr Chakraborty or the Tribunal as part of the proceedings which were underway.  However, the version which was supplied contained a note on the first page which read: “Note: This report was amended and reissued on 23.06.2022 following independent legal advice”.

Mr Chakraborty applied to the Tribunal for production of the original un-amended version of the investigation report.  The University resisted this.  It said that the original report was protected by legal advice privilege as the original and amended versions could be compared and inferences drawn about the legal advice provided to the University.

The Tribunal disagreed and made an order requiring the University to disclose the original version of the report.  The University appealed against this decision.

The EAT decision

The EAT ordered that the original version of the investigation report be disclosed by the University.  Privilege did not attach to it.

When originally created, the report was not a communication between a client and a legal advisor for the purposes of giving or receiving legal advice (‘legal advice privilege’).  Nor was it a document created in contemplation of litigation (so called ‘litigation privilege’).  It was an investigative response to a grievance raised by Mr Chakraborty.  The original un-amended report did not retrospectively become privileged even if an incidental consequence of its disclosure and a comparison with the final version might allow inferences to be drawn about any differences there may be between the two versions.

Comment

The Judge made clear in this case that at no time had the Tribunal seen the original version of the investigation report.  How damaging the original version is to the University’s position in the ongoing proceedings is therefore not known – that will be for the Tribunal to determine in the fullness of time.  However, given the lengths to which the University went to avoid its disclosure, it must be assumed that the original version contained parts which, at best, were contrary to the legal advice subsequently provided to the University on its overall litigation strategy.

In our view, the ‘takeaway’ points from this case are less about the scope of privilege.  The rules on privilege are complex, and are in any event, not the main subject of this article.  What this case does is to remind us that:

1. As soon as a version of a document is created, it risks being discoverable by an opponent. This could have unintended and damaging consequences.
2. Employers should engage with legal advice at an early stage, and before versions of key documents (whatever they may be) are created. Your legal team will be able to help set up the advice in a way which best ensures any privilege arguments can be successful.
3. The investigation is a vital stage of any HR procedure – whether that be relating to a grievance, disciplinary or whistleblowing process. It underpins the integrity of the process and getting it right at the outset is crucial.  In the right case, engaging an external investigator can be invaluable.

Greenwoods’ Workplace Investigation Team – how we can help

Our Workplace Investigation team offers organisations the opportunity to use legal experts to undertake workplace investigations, enabling them to demonstrate impartiality at an early stage and that the matter under investigation is being taken extremely seriously.

The team’s experts have the legal knowledge, skills, and expertise to investigate on an organisation’s behalf and take a flexible, collaborative, and, importantly, practical approach. There is no risk of the process becoming too ‘legal’, and organisations outsourcing investigations benefit from essential resource not being over-stretched.

If you need legal advice on any of the issues this article considers, or if you feel that your organisation would benefit from using Greenwoods’ Workplace Investigation Team, please get in touch with Sophie Askew.  We would love to discuss how we can help.