By Charles Power

In some cases you might seek to have a lawyer investigate the facts or circumstances of an incident in the workplace, so they can give you professional legal advice about the implications of that incident for you and your business.

For instance, you might ask a lawyer to advise you about your vicarious liability as an employer for an alleged instance of sexual harassment engaged in by one employee in respect of another employee at an end-of-year party.

You might ask your in-house or external lawyer to conduct an investigation, make findings as to what actually happened and give you advice about your liability as an employer.

The documents that record communications relating to this investigation may attract legal professional privilege. This means that if there is some legal compulsion to produce these documents (for example, a Fair Work inspector issues a notice to produce or there is a Court order to give these documents to an applicant claiming sex-based discrimination) you can resist this by a claim of privilege.

However, certain rules apply to claim this privilege.

The documents created as part of the investigation must be for the dominant purpose of the lawyer giving legal advice. The documents and the communications they record must also be confidential.

If the documents are forwarded on to a third party for a purpose unrelated to the giving of legal advice, the privilege will be lost. For example, suppose the lawyer issues an investigation report to you which finds the sexual harassment allegations to be unsubstantiated. You then forward the report to your WorkCover insurers for the purpose of assisting them to determine whether a workers’ compensation claim by the employee should be accepted.

The report was privileged when it arrived to you but was lost as soon as you forwarded it to the insurer.