The First Division of the Inner House recently issued its decision in University of Dundee v Chakraborty (2023csih22.pdf (scotcourts.gov.uk)). Dr Chakraborty was a post-doctoral research assistant in cellular medicine at the University of Dundee. He had raised employment tribunal claims of constructive unfair dismissal, direct race discrimination and racial harassment against the University and his supervising professor. A Final Hearing of the claims was due to be heard by the Employment Tribunal in Dundee in May 2022. Dr Chakraborty had raised a number of his complaints internally with the University, and were being investigated under the University’s Dignity at Work and Study (DAWS) Procedure. Around one week prior to the start of the ET hearing, the University provided Dr Chakraborty with its report into his complaints. The cover page of the report stated at the foot “Note: This report was amended and reissued on 23.06.2022 following independent legal advice”. No further information was given as to what had been amended, or why.
Dr Chakraborty, representing himself, had requested disclosure of the original version of the report on the first day of the ET hearing. The ET granted that request, considering the original version to be potentially relevant to the claims. It rejected an argument that provision of the original version of the report would reveal the nature of the legal advice given, and thus breach legal professional privilege.
The University appealed to the EAT on this point, which rejected it, arguing that whilst the original version did not benefit from legal advice privilege at its creation, it came to be privileged as documents that could, when taken together, reveal the content of legal advice. The University did not explain what had been amended.
The University then appealed to the Inner House of the Court of Session. The University was represented by Lord Davidson of Glen Cova KC, and Dr Chakraborty represented by Westwater Advocates’ David Hay. David was instructed at relatively short notice after the appeal had been marked for ‘early disposal’ by the Inner House, Dr Chakraborty having thereafter instructed solicitors (Balfour & Manson). In an opinion issued on 1 June 2023, the First Division refused the appeal. The opinion of the court was delivered by the Lord President, Lord Carloway. Whilst prepared to accept that legal advice given to the University in connection with the reports of the DAWS report could amount to a ‘relevant legal context’ to engage the application of legal advice privilege, the University had not established the existence of that privilege in respect of the first version of the report. The Court observed, at paragraph [19] of the opinion, that there was a distinction between a situation where there could be a definite and reasonable foundation in the contents of the document for the suggested inference as to the substance of the legal advice given and merely something which would allow one to wonder or speculate as to the substance of legal advice. The University’s case fell into the category of speculation about, as opposed to inference of, the substance of advice.
Separately, the Court upheld a further submission (not considered in the tribunals below) that in the event the first version of the report had been privileged, it was waived either at the point it had been disclosed to the independent investigator of the DAWS complaint, or at the latest at the point when the University disclosed in the final version that it had been altered as a result of advice, when the report was obviously to be the subject of scrutiny by the employment tribunal in Dr Chakraborty’s claims.
Whilst the Court was careful to observe that it was concerned solely with the question of whether confidentiality attached to the first version of the DAWS report, had the University’s appeal been successful it could have had broad ramifications on the approach of employers to the preparation, and subsequent disclosure in proceedings, of grievance investigations and reports into matters that are then pursued as claims in the employment tribunal.