Hello and welcome back to your weekly case law update. Last week we had our monthly update which had articles on flexible working, sexual harassment and what to expect under the Sunak government. This week’s case law update is about tribunal procedure and legal privilege. Whilst not the most high-octane of topics it does have practical implications for HR advisers. This would include any documents the adviser drafted.

Correspondence between clients and their solicitors is subject to legal privilege and not usually disclosable during legal proceedings. For example, if an employer sends an email to their solicitor asking for advice about an employee who recently resigned, the advice they receive would be privileged and not disclosable in any subsequent claim.

This Week’s Question


If the wording of a document suggests it has been amended following legal advice, does the original unedited version become disclosable in tribunal proceedings?

Mr Chakraborty, the Claimant, was employed by the University of Dundee, the Respondent, as a Post-Doctoral Research Assistant. The Claimant raised a grievance alleging bullying, harassment and race discrimination against his line manager. The Respondent appointed Professor Niamh Nic Daeid to investigate the grievance. After conducting her investigation, Prof Daeid sent the report to the Respondent’s legal advisers who suggested several amendments to the report.

Prof Daeid made the suggested changes and several of her own before sending the final report to the Claimant. The report also included the following annotation: “Note: This report was amended and reissued on 23.06.2022 following independent legal advice.” The Claimant sought disclosure of the unamended report and the Respondent refused. The Claimant made an application for disclosure to the Tribunal and the Respondent responded to this stating that disclosure of the unamended version would allow both the Claimant and the Tribunal to draw inferences on what the advice might be. The Employment Tribunal allowed the application and ordered disclosure of the original report.

The Respondent appealed but the Employment Appeal Tribunal dismissed the appeal. It held that whilst the advice itself was privileged and this would normally extend to any documents the adviser created, the original report was created by Prof Daeid and therefore not subject to privilege. Whilst seeing the unamended report would allow the Claimant to infer what the advice was the report cannot gain retrospective privilege simply by being sent to an adviser.

The Takeaway Point

It is common for am employer to send a letter, report or contract to an adviser for feedback before sending to the employee. The trick is not to tip the employee off that the document has been amended by an adviser. Had Prof Daeid not included the annotation the unamended report would likely not have been known to the Claimant and an application for its disclosure would not be made. Had that annotation not been added the employer in this case would have likely not had to disclose it but would have also saved the time and cost of fighting a preliminary issue to EAT before dealing with the substantive hearing.