A recent employment case highlights that you can't claim legal privilege over an earlier draft of a report prepared without legal advice, which was subsequently amended by the employer's legal advisers before it was disclosed to the employee. The earlier draft of the report did not attract retrospective legal privilege.
In November 2021, an employee raised a grievance against his line manager which included allegations of harassment and bullying, discrimination and racial abuse.
The employer appointed a senior manager to investigate the grievance under the employer's Dignity at Work and Study policy. The investigation took three months and involved gathering a number of documents and interviewing witnesses. A report was produced on 28 February 2022 but was not immediately released to the employee.
In the meantime, the employee had issued claims in the Employment Tribunal. Before releasing the report to the employee, the employer asked its solicitors to review the report. The solicitors made a number of amendments to it, as did the investigator. The amended report was eventually released to the employee in June 2021, in advance of his scheduled grievance hearing. It contained an annotation on its front page which said "This report was amended and reissued… following independent legal advice".
Employment tribunal orders disclosure of original draft of report
In the Employment Tribunal proceedings, the employer disclosed only the final version of the report. The employee requested the original version but the employer withheld it relying on legal advice privilege. The employee applied to the Tribunal for an order requiring disclosure of the original report.
The employer argued that legal advice privilege applied retrospectively to the original report. In particular, it argued that disclosing the original report would enable a comparison to be made between the two versions which could, by inference, reveal the contents of legal advice given to the employer by its solicitors.
The Tribunal did not accept this argument and ordered disclosure of the original report. The employer appealed to the Employment Appeal Tribunal (EAT).
EAT confirms privilege didn't apply retrospectively
The EAT dismissed the appeal, agreeing with the Tribunal's decision. The EAT accepted that the terms of any legal advice given by the solicitors to the employer would plainly be privileged. However, it did not accept that an original unamended document which was not privileged at the time (something which the employer accepted) could retrospectively become so. That was the case even if an incidental consequence of its disclosure and comparison with the disclosed final version might be to allow inferences to be drawn about any differences between the two versions.