Beware: draft grievance investigation reports will likely be disclosable as evidence

10th October 2022

Disclosure is a process that parties are compelled to go through during employment tribunal proceedings. It essentially involves giving the other party a copy of all documents that are relevant to the issues that will be considered, whether or not they are helpful or harmful to your case.

Often parties involved in Employment Tribunal proceedings will want to withhold any evidence which could be detrimental to their case but there are very limited circumstances where this is allowed. Relying on legal professional privilege is one of these. Legal professional privilege applies only to documents and communications which are made for the dominant purpose of seeking or giving legal advice. This usually covers all emails where legal advice is specifically sought or given.

In the recent case of University of Dundee v Chakraborty, the university tried to rely on the principle of legal professional privilege to withhold disclosure of a draft grievance report. However, both the Employment Tribunal and the Employment Appeal Tribunal ruled that legal professional privilege did not apply and the university was ordered to disclose the damaging draft report.

In that claim, Mr Chakraborty raised a grievance, and a member of the University’s academic staff was appointed to investigate it. As part of their investigation, the investigator drafted an investigation report which commenced on the evidence gathered and made a recommendation for next steps. By the time the investigation was complete, Mr Chakraborty raised claims in the employment tribunal for discrimination and harassment. Before the grievance investigation report was finalised, the investigator instructed the University’s lawyers to review it, after which they made a number of amendments. These amendments were accepted, and the investigator made further amendments. The revised report was shared with Mr Chakraborty.

During the course of his Employment Tribunal claim, Mr Chakraborty asked to see the original investigation report. The University resisted this. Whilst they accepted that the original drafting of the report did not attract legal professional privilege, they said that disclosing it would allow a comparison between the original and revised report to be made, and this would reveal what legal advice had been provided. They therefore tried to rely on retrospective legal professional privilege. The EAT found in Mr Chakraborty’s favour. It said that whilst a comparison could be made between the original and final reports, this would only show what amendments had been made: whilst inferences could be drawn from the amendments, it did not necessarily follow that this would reveal what legal advice had been provided, especially as the investigator made her own amendments as well as those recommended by the university’s lawyers. Legal professional privilege therefore did not apply.

This case is therefore a useful reminder that all draft reports and communications that are produced during the course of any internal procedure, will likely be disclosable as evidence in any subsequent Employment Tribunal proceedings. They can only properly be withheld if they are created for the dominant purpose of obtaining legal advice: usually the dominant purpose of an investigation report or outcome letter is to serve as part of a response to a grievance and so in most cases, legal professional privilege is unlikely to apply.

Great caution therefore needs to be taken when preparing any draft documents as part of internal proceedings and wherever possible, we recommend that before pen is put to paper, legal advice is sought about what you should and should not say, and how to go about doing so, to help protect your position.

If you need any employment law advice, please get in touch with Annie Gray at

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