Employer's solicitors attending HSE interviews with employees
Employer's solicitors attending HSE interviews with employees
Issued on 17 March 2006 (updated 5 February 2014)
Who is this guidance relevant to?
Solicitors and other persons regulated by the SRA who are involved in investigations made by the Health and Safety Executive (HSE). Investigations by other similar authorities may give rise to similar considerations.
Words in italics are defined in the SRA Glossary.
This document does not form part of the SRA Handbook and is not mandatory, but the SRA may have regard to it when exercising its regulatory functions.
Our concerns arise from solicitors (either in-house solicitors or solicitors in private practice) acting for an employer during an investigation by the HSE and being present at the HSE Inspector's interview of an employee following a work-related incident. Concerns may arise where the solicitor seeks to represent both an individual employee and the employer who may have different interests, or where an employee has had no opportunity to receive independent legal advice.
Particular concerns arise when
- there is a client conflict between two or more clients;
- clients' confidential information is put at risk;
- there is no opportunity to receive independent legal advice;
- there is uncertainty about who the solicitor is acting for;
- unfair advantage is taken of third parties.
The SRA Principles are mandatory and apply to all those we regulate. They embody the key ethical requirements on firms and individuals who are involved in the provision of legal services. You should always have regard to the Principles and use them as your starting point when faced with an ethical dilemma.
The following Principles are relevant:
- 1. Uphold the rule of law and the proper administration of justice;
- 2. Act with integrity;
- 3. Not allow your independence to be compromised;
- 4. Act in the best interests of each client;
- 6. Behave in a way that maintains the trust the public places in you and in the provision of legal services.
The following guidance sets out the issues arising together with relevant mandatory Outcomes contained in the SRA Code of Conduct 2011 (the Code).
1. Who is my client?
The solicitor must be clear who he or she is acting for when attending the interview. Is it the employee, the employer, or both? Solicitors must treat clients fairly (Outcome 1.1) and provide services to clients in a manner which protects their interests in their matter, subject to the proper administration of justice (Outcome 1.2).
2. Acting for both employer and employee
2.1 If a solicitor is asked to act for both the employer and the employee, very careful consideration should be given before deciding whether to accept instructions due to the risk of a conflict of interests. Outcome 3.5 of the Code provides that:
You do not act if there is a client conflict, or a significant risk of a client conflict, unless the circumstances set out in Outcomes 3.6 or 3.7 apply;
The definition of client conflict is contained in the SRA Glossary:
for the purposes of Chapter 3 of the SRA Code of Conduct, means any situation where you owe separate duties to act in the best interests of two or more clients in relation to the same or related matters, and those duties conflict, or there is a significant risk that those duties may conflict.
2.2 In assessing this risk, the solicitor should take account of the duty of disclosure (Outcome 4.2) and the duty of confidentiality (Outcome 4.1), and the likelihood of these coming into conflict. In addition Outcome 4.4 should be carefully considered to ensure clients’ confidential information is not put at risk. For example, the duty to tell the employer client about information provided by the employee to the HSE inspector in the course of the interview, may conflict with the duty of confidentiality owed to the employee client.
2.3 Outcome 4.5 of the Code requires firms and in house solicitors to have effective systems and controls in place to identify risks to client confidentiality and to mitigate those risks.
3. Acting for one employee only
If the employer is funding a solicitor to act for the employee, on the clear understanding that the solicitor acts solely for the employee, there should be no problem. The solicitor will understand that, regardless of the source of the funding, the employee is the client. The solicitor's duty is to act in the employee's best interests and to observe the usual duties of confidentiality owed to a client. The solicitor may provide information to the employer about the interview only if the employee has given informed consent. The solicitor must consider whether this is in the best interests of the client and advise accordingly.
4. Acting for more than one employee
Where the employer funds a solicitor to act for more than one employee, the solicitor must assess whether there is a significant risk of conflict between those potential clients before deciding whether to accept instructions to act for more than one client.
5. Acting for the employer only
5.1 If a solicitor is acting only for the employer, and not for the employee, the solicitor may provide to the employee information about the process. The solicitor must make sure the employee understands that he or she is not acting for them, owes duties only to the employer, and cannot advise them and that anything they say will not be treated as confidential and will probably be reported to the employer. It would be prudent to record this in writing and obtain a written acknowledgment from the employee. The solicitor should advise the employee before any interview of their right to obtain their own advice from any appropriate source, such as a trade union, or an independent solicitor.
5.2 But even if these precautions are taken, it is difficult to justify the employer's solicitor accompanying the employee to the interview. The employer's solicitor's conduct obligation is to pass on to the employer all information which is material to the client's business, regardless of the source of that information (Outcome 4.2). This means that the solicitor will be obliged to pass material information to the employer, whether or not to do so is detrimental to the interests of the employee. The solicitor would be present at the interview at the employee's behest, in the knowledge that this situation might arise. The solicitor would be exposing himself to the possibility of obtaining information detrimental to the employee which he/she would be duty bound to pass on to the employer. The solicitor could even be perceived as taking unfair advantage of the employee, in that the employee's right to be accompanied would have been exercised in favour of a solicitor whose duty was owed to the employer and not to the employee (Outcome 11.1).
5.3 There are other more general public interest issues to be considered. Would the presence of the employer's solicitor inhibit the employee from making a full and proper disclosure of facts relevant to the enquiry? An employee may understandably be reluctant to say anything which may have an adverse effect on their continuing employment or prospects of promotion, in the presence of an employer's solicitor, whose presence may have the effect of constraining the employee in what they will say (Principle 1).
5.4 There should be no pressure on the employee to accede to having the employer's solicitor attend the interview. Otherwise employees might feel that merely by refusing the offer of attendance by the employer's solicitor they might be alienating their employer.
5.5 For these reasons it is generally inappropriate for the employer's solicitor to attend such interviews as the employee's nominee, or to seek to obtain the employee's consent to being present at the interview.
6. In-house solicitors - additional considerations
Rule 4.4 of the SRA Practice Framework Rules 2011 provides that an "in-house" solicitor can represent a fellow employee where the need for representation arises out of the work of the employee, subject to Rule 4.5 of those Rules and provided there is no actual or potential conflict of interest. The solicitor must consider carefully, and should record such consideration, whether there is actual or potential conflict between the interests of the employer and those of the employee.
7. The role of the employer's solicitor
What role may an employer's solicitor have in these investigations?
- To advise and represent their employer client.
- To inform employees as to their general legal rights and obligations, whilst making clear that they neither act for the employee nor owe the employee any of the duties which solicitors owe to their clients.
- To advise and represent the employer and one or more employees if it is absolutely clear that there is no conflict or potential for conflict, for example, where the entire responsibility for an accident clearly rests with a third party outside the organisation, then there would not seem to be any difficulty in the solicitor representing both parties. The solicitor should consider carefully whether at the early, investigative stage that conclusion can safely be reached, and make a record of the reasons for their decision. The question of conflict should be kept under constant review throughout the investigation.
- To attend an HSE interview with an employee where the employee's interest is so co-incident with the employer's that the solicitor is able to conclude that, if so requested, he/she would be able to accept formal instructions to act for both of them, without any breach of the solicitor's professional duties, as set out in this guidance. Such a situation could arise, for example, where the employee is the controlling mind of the company, or is authorised to represent the employer in connection with the matter. Again, the question of conflict should be kept under constant review throughout the investigation.
Interview notes and recording your actions
Solicitors attending interviews should at the outset ask the HSE for a copy statement to be provided at the end of the interview. If this is not agreed the solicitor would be well advised to take a full note of the interview. Contemporaneous notes of the reasons should be made of your decisions and must be ready at any time to justify your actions.
Please contact the Professional Ethics Guidance Team.