Mr Chakraborty raised a grievance with the University, however before the grievance investigation report was produced, he had submitted an employment tribunal claim. The University asked its solicitors to review the report before it was shared. The solicitors suggested some amendments; however, the investigator also made some further amendments of their own. The amended report was then disclosed to Mr Chakraborty. However, the first page of the report stated “Note: This report was amended and reissued on 23.06.2022 following independent legal advice”.
Mr Chakraborty requested disclosure of the original report, but the University refused on the grounds that that the original report attracted legal privilege. The University argued that if the original report was shared, then a comparison could be made between the two versions which would enable inferences to be made about what legal advice had been provided. The tribunal rejected this and ordered the original report be disclosed.
The University appealed but the EAT dismissed the appeal. The report was produced in response to a grievance and not in contemplation of litigation, therefore it could not attract litigation privilege. The University also argued that legal advice privilege applied to the report retrospectively, due to the legal advice it received on the report’s contents, however this was unsupported by legal authority and rejected by the EAT.