Why attorney-client privilege is no defence in harassment suits

As employees have become more conversant with their right to a workplace free from unlawful discrimination and harassment, and more aware that they can lodge complaints without fear of retaliation, employers have become more attuned to their responsibility to listen to, investigate, and follow up on complaints.

Quite a bit has been written about how to conduct investigations in a fair, thorough, and impartial way, but less attention has been paid to the mechanics of documenting your response in a way that will not only resolve the complaint satisfactorily in the present but also provide protection for the organisation should a lawsuit be filed in the future.

Workplace investigations are key in many areas of Employment Relation. Employers may conduct workplace investigation because they have a legal obligation to do so, because they have committed to do so in their own workplace policies, because conducting a workplace investigation may help mitigate risk, or for any combination of these reasons.

The findings of a properly conducted investigation aid employers in determining how they should respond to employee misconduct, and other situations that may arise in the workplace.

In many of these circumstances, employers may wish to keep the findings of a workplace investigation confidential, either to protect employees’ privacy, or in order to minimise legal exposures and liabilities.

Since communications between lawyers and clients are privileged, employers will often have internal or external legal counsel conduct the investigation in an attempt to claim privilege over the entirety of the investigation. However, despite many employers’ belief to the contrary, having legal counsel conduct a workplace investigation does not guarantee that privilege can be claimed over the investigation.

Take for instance an employee complaining to the HR that her supervisor has been sexually harassing her. The allegations are not simple, and, if the investigation is mishandled or even if it is handled perfectly, the HR is reasonably confident that the employee will still sue the company. Thus, the HR wants to ensure that every aspect of the investigation is covered. So, they bring in the company lawyers to handle the investigation.

At the conclusion of the investigation, the lawyers recommend that the company suspends, and not fire the perpetrator. That decision leads to the victim filing a suit. During the proceedings, the employee requests a copy of the investigatory report. The HR refuses, claiming it is protected by the attorney-client privilege.

The question that then arises is whether the court should compel the company to disclose the report, or hold it as a protected communication between a lawyer and his client. The answer to this dilemma would be found in the recent case of Barbini v. First Niagara Bank, where a U.S court in the US concluded that the lawyer’s investigatory report is not privileged and ordered for its disclosure.

Not all communications between lawyers and their clients are privileged. The attorney-client privilege protects communications that are primarily or predominantly legal in nature. These communications require interpretation and application of legal principles to guide future conduct or to assess past conduct.

However, the privilege does not extend to communications that involve the business or operations of the employer that do not otherwise rely upon the interpretation and application of legal principles.

The logic is that when a lawyer fills the role of an investigator of workplace misconduct, the attorney is filling a business role, not a legal role. Thus, the privilege does not attach to protect the communications. The lawyer is no longer considered as the company’s lawyer but a witness.

If the employer wants to be able to rely upon the investigation at all as part of its defence to the harassment claim, then it is going to have to waiver any attorney-client privilege that otherwise might attach to and protect the investigation. The employer might need to prove that the promptness and thoroughness of its investigation. It might need to prove the reasonableness of its corrective action.

Finally, to quote Justice Radido in Patrick Abuya v Institute of Certified Public Accountants of Kenya (ICPAK) & another [2015] eKLR an investigation prior to a disciplinary process is not an express requirement of the Employment Act, 2007.It neither takes the form of a quasi-judicial enquiry nor the nature of a police investigation.