The claimant was employed as a Post-Doctoral Research Assistant in January 2013 by the respondent University. The issue relating to these proceedings centred upon an email the claimant sent which raised a grievance against his line manager. The grievance centred upon matters of harassment, bullying, discrimination and racial abuse.

The grievance was dealt with under the respondent’s Dignity at Work and Study Policy. As a result, an independent member of academic staff was appointed to investigate the grievance and write a report. This report was completed on 28th February 2022 but the external legal advisors of the respondent requested that some changes be made to the report. These changes as well as others on the own volition of the independent academic member of staff were made before the final version of the report was made. The respondent lodged this final report before the Tribunal in relation to the claims that had been made. The claimant then made an application for the original report to be made available which was resisted by the respondent. The argument of the respondent was that the original version of the report could be used alongside the final report to work out the nature of the legal advice received which should be privileged. However, the Tribunal at first instance rejected the argument ordering that the original version be disclosed.

The respondent appealed arguing that the original report had retrospectively acquired legal advice privilege and could not be disclosed. The EAT held that the report did not retrospectively acquire privilege. There may well be inferences drawn between the two documents which could go to the nature of any advice that had been received yet it is the advice and not the reports which would be privileged in this context. Indeed, there were amendments made to the report which did not relate to the legal advice and as a result it would not be possible to distinguish which amendments were as a result of the legal advice and which were on the volition of the independent academic member of staff. As a result, the appeal was dismissed.

Practical Lessons

This case centres upon whether draft reports, relating to grievances, can be disclosed. Such reports and moreover the difference between them and the final report can be important for claimants in asserting that there has been third party pressure. The EAT has demonstrated how such draft reports are not instantly protected through legal advice privilege merely on the basis that there was some legal advice in relation to proposed amendments. Employers should be mindful of this in relation to proposing amendments to draft reports and the effect that disclosing such draft report could have on subsequent proceedings.

https://www.gov.uk/employment-appeal-tribunal-decisions/university-of-dundee-v-mr-prasun-chakraborty-2022-eat-150