Disclosure of grievance investigation report
17 October 2022
In this case, the Employment Appeal Tribunal (EAT) was considering whether the employment tribunal had been correct in its decision that the original version of a grievance investigation report was disclosable in subsequent tribunal proceedings.
The claimant had raised a grievance under the university’s Dignity at Work policy and an investigation was carried out. By the time the investigation was completed, the claimant had issued employment tribunal claims for race discrimination and harassment. The investigation report was reviewed and amended by the university’s legal adviser before it was disclosed to the claimant. The investigator also made some of her own amendments. A note on the first page of the report stated that the report had been “amended and reissued” following independent legal advice.
At the outset of the tribunal hearing, the claimant applied for disclosure of the original version of the investigation report. This application was resisted by the university on the grounds that the original version was protected by ‘legal advice privilege’. Legal advice privilege protects confidential communications between a lawyer and their client for the purpose of giving or receiving legal advice. This argument was rejected and the tribunal made an order for disclosure of the original report. The university appealed to the EAT.
The EAT has dismissed the appeal, upholding the decision of the employment tribunal that the original investigation report was disclosable.
At the time the report was created, neither litigation nor legal advice privilege applied. It was produced in response to a grievance and not in contemplation of litigation, which would be necessary to bring it within the remit of litigation privilege. The employer’s argument that legal advice privilege applied to the report retrospectively, due to the legal advice it received on the report’s contents, was unsupported by legal authority and rejected by the EAT. Even by comparing the two versions of the report, it would be difficult to infer what legal advice was given, since the investigator had made her own amendments.
The Birketts view
An internal investigation report, whether produced under a disciplinary or grievance procedure will generally always be disclosable in subsequent tribunal proceedings, as it will not be covered by legal privilege. This will be the case whether the report is produced by a member of staff or by an external investigator, even if the investigator is legally qualified (such as our own Birketts investigation team).
Those conducting investigations need to ensure that their investigation report is comprehensive and accurate, and their conclusions are reached independently. If different versions of the final report are produced, bear in mind that these may all be disclosable in subsequent proceedings, so any significant changes to the original version will need to be explained and justified.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at October 2022.