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Employers conducting internal grievance investigations beware! And should employees ask for the metadata?

A great result for our Employment Team’s Equality Lead and Partner Sarah Shiels alongside David Hay, Advocate who acted for our client to successfully resist an appeal to the Inner House of the Court of Session from the Employment Appeal Tribunal by the University of Dundee. The issue was whether legal privilege could retrospectively apply to an original version of an internal grievance investigation report which had subsequently been amended following legal advice. The University argued that disclosure of the original would reveal the nature of the advice.

It was conceded by the University that the original document did not attract privilege, it not having been produced in litigation and no legal advice having been sought at that time. The court noted that the appellants had themselves revealed that the report had been amended following legal advice as they had footnoted this in the document. Lord Carloway said “The respondent may be able to deduce what legal advice might have been given only because the appellants themselves revealed the existence of such advice as having influenced the content of the final version.” The court then concluded that privilege had been waived saying “It must have been obvious to the appellants, when they revealed the content of the final version of the report, that the basis of that report would have to be the subject of scrutiny by the Employment Tribunal. If some of its content were based on legal advice, that advice would have to be revealed in the interests of both fairness and understanding.”

Employers conducting internal investigations are advised to take care when seeking legal advice on a report produced under an internal process such as a Dignity at Work/grievance policy. The investigator is entitled to HR support and guidance but this judgment indicates that obtaining legal advice following a report will not prevent the original being disclosed. In this case the appellant revealed that the report was revised after legal advice. Employers are unlikely to disclose that fact after reading the Court’s decision. That suggests claimants seeking to challenge a report would be entitled to obtain an audit trail of such documents and the metadata indicating revisals, amendments and the original email communications surrounding the process.

The Employment team at Balfour+Manson are on hand to assist you with all HR and Employment Law issues – please get in touch to discuss your requirements.

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