Why legal privilege often fails in workplace investigations

Employers trying to keep workplace investigations legally privileged may face more obstacles than they expect, particularly once disciplinary processes begin.

In a recent presentation, Sally Moten, Partner & Practice Group Leader, and Sara Wescott, Special Counsel at Lander & Rogers, examined how courts and tribunals are approaching privilege claims in employment investigations and where those claims commonly unravel.

The session focused on recent decisions involving National Australia Bank and Cohealth, which reached different conclusions on whether investigation materials remained protected by legal professional privilege. Moten and Wescott explained that courts closely examine the purpose of an investigation from the outset, including engagement letters, communication protocols and how findings are later used. Cultural reviews and preliminary risk assessments may be more capable of attracting privilege because they are often tied directly to legal advice. Misconduct investigations, however, can become harder to protect once employers rely on findings to justify disciplinary action or disclose material during procedural fairness processes.

Moten and Wescott also outlined practical steps organisations can take when attempting to preserve privilege, including limiting unnecessary communications, maintaining confidentiality throughout the process and ensuring all parties involved describe the purpose of the investigation consistently. They noted that even carefully managed investigations may later become subject to scrutiny in litigation, particularly in unfair dismissal and general protections matters before the Fair Work Commission.

If this topic interests you, you can learn more and receive a CPD point in Ethics and professional responsibility here