Employment Lawyers Advising on Investigation Reports: Where Are the Boundaries?
07 October 2019
It’s an everyday scenario for employment lawyers and HR professionals. A disciplinary investigation is carried out. A draft report is produced, and the (internal or external) employment lawyer is asked to review and advise on any amendments that might be made to the contents.
The lawyer proposes changes, which are then embodied in the final report. Those amendments change the course of the disciplinary process. Does the solicitor’s involvement render any subsequent dismissal unfair?
No, said the Employment Appeal Tribunal (EAT) in Dronsfield v University of Reading – a decision which will provide reassurance to all who practice in this area, while also offering helpful guidance on when solicitors’ involvement may cross the line.
The case concerned an academic who was dismissed following an undisclosed sexual relationship with a student – “immoral, scandalous or disgraceful [and] incompatible with the duties of the office or employment”, in the rather floral language of the University’s disciplinary code. An early draft of the disciplinary investigation report, prepared by a Professor with support from HR, said that there was “no evidence to suggest that the conduct of Dronsfield constituted conduct of an immoral, scandalous or disgraceful nature”. It was sent to the University’s in-house employment lawyer, who (among other suggested changes) recommended to the investigators that they should omit this finding, and instead leave it to any subsequent internal disciplinary tribunal to make evaluative conclusions such as whether the Claimant’s admitted conduct amounted to the prohibited behaviour. They accepted this advice and the finding did not appear in their final report.
The investigation report went through some seven drafts, all of which appear to have been in evidence before the Tribunal. The Tribunal accepted that it was “sensible” to have a solicitor advise on the report, given “matters such as this are complicated, with the scope for legal error”. Notably, the decision confirms that none of the advice from the in-house lawyer itself was disclosed, as this was privileged; rather, “the Judge was… able to form the picture that he did, in relation to her role and advice, without such privilege being either waived or breached”. This is unsurprising: it would be expected that the output (interview notes, reports etc) from a disciplinary investigation would not be privileged, whereas advice from a solicitor on the conduct of the investigation would, but it is nevertheless helpful confirmation. It is also a reminder of the need to be careful – particularly where a lot of correspondence about the investigation is being generated – not to blur the boundaries between legal advice and other material, in case privilege is lost.
Here, the solicitor’s involvement stayed on the right side of the line, and did not make the Claimant’s dismissal unfair. Crucially, the lawyer’s involvement had not resulted in any evidential material being withheld from the disciplinary panel: the Tribunal was alive to the fact that it would be problematic if this had happened and noted that in some cases “serious impropriety” could even lead to the loss of legal privilege.
This was not such a case, however. The report had not been changed to make the Claimant’s dismissal more likely, and no pressure had been placed on the investigators to change the report; rather, they had simply accepted the solicitor’s advice that their report should not set out evaluative conclusions. The advice had anyway been on drafts of the investigation report, and drafts would not normally be provided to the next stage decision maker.
The EAT also placed some weight on the fact that the University had appointed an external barrister to hear the Claimant’s appeal against the disciplinary decision. The barrister considered the matter afresh, and in doing so compared the different versions of the investigation report. She accepted the explanation for the changes to the report, and upheld the decision to dismiss.
This case does not provide carte blanche for employment lawyers (whether they are in-house or external) or HR managers to re-write investigation reports at will – far from it. If the lawyer inserts himself or herself into the role of fact finder or decision maker, or pressurises the investigators to come to particular conclusions, that will be problematic. However, it does provide comfort that where an employment lawyer is instructed to advise investigators on the preparation of a disciplinary report, and proposed amendments are limited to the context of advising on compliance with internal procedures and the general law, this should not jeopardise the fairness of any subsequent disciplinary decision. It will be important, however, for the investigators to retain full “ownership” of the report: it is for them to decide whether they wish to accept or reject any advice given by the solicitor and produce the final report, not simply rubber stamp the solicitor’s recommendations.
This decision is the second time the EAT has considered this particular case. An initial tribunal had found the dismissal to be fair but this was successfully appealed and the case remitted to a different employment tribunal. The decision of the second tribunal was the subject of this appeal.
Dronsfield v The University of Reading - judgment available here