Jason Elliott was called to the Bar of Northern Ireland in 2013 and is the Associate Head of School of Law at Ulster University. As a practising barrister, he has developed a largely civil practice representing individuals, companies and public bodies in litigation. This covers a wide range of areas including personal injuries, wills and employment law. In terms of employment law, he has represented both applicants and respondents in the Industrial Tribunal. At Ulster University, Jason lectures extensively on the civil areas of practise such as Equity and Trusts and delivers employment law lectures for both undergraduate and postgraduate students.
Background:
The claimant raised a grievance under the Dignity at Work and Study Procedures within the University. A member of staff investigated and reported. Prior to the outcome a Tribunal claim was lodged relating to constructive dismissal and racial discrimination.
The report from the grievance was produced but subsequently amended by the University’s lawyers. This was made available with a footnote outlining there had been an amendment. The case related to the original report with the claimant wishing for it to be disclosed. The University resisted this stating that the comparison between the reports would reveal privileged legal advice. It was held by the Tribunal and the EAT that the report did not retrospectively receive privilege and should be disclosed.
Outcome:
An appeal was lodged to the Court of Session. The general principle from the Three Rivers case was that confidentiality would extend to material which would allow a reader to work out what the legal advice was. However, the only reason that the legal advice would be clear is because the respondent revealed that there had been legal advice and that led to a change in the report. The Court also considered waiver and that being the abandonment of the right of confidentiality and that it could be inferred from the facts and circumstances. It was held the privilege here was abandoned when the advice obtained was revealed to the person who was carrying out the impartial investigation. The confidentiality was lost when it was made known that the original report had been altered as a result of legal advice. Therefore, confidentiality had been waived and the report should be disclosed.
Practical Guidance for Employers:
This case provides some guidance on the disclosure of reports which may have been altered following legal advice. There is scope for privilege where it is known what the legal advice would be if the two reports were considered. However, in this case the confidentiality was waived due to the fact the impartial report was being altered and the claimant was informed through the report that some part had been changed due to legal advice. This should be considered when there is input from legal advisers relating to reports relating to employees/grievances/disciplinary action.
Link to the Scottish Court’s decision:
https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2023csih22.pdf?sfvrsn=553b6769_1
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