Approval of employment under s41 and s43 of the Solicitors Act 1974
Issued 25 November 2019
This guidance is to help those we regulate understand how to obtain our approval to employ or remunerate struck off or suspended solicitors and non-authorised persons subject to a control order. We may have regard to it when exercising our regulatory functions.
Who is this guidance for?
This guidance applies to:
- All SRA-regulated firms (including recognised bodies, licensed bodies, and sole practitioners)
- Any solicitor or registered European lawyer (REL) whose practice consists entirely of carrying on non-reserved legal activities as permitted by regulation 10.2 (a) of the Authorisation of Individuals Regulations
wanting to employ or remunerate someone who is subject to section 41 or section 43 of the Solicitors Act 1974.
Purpose of this guidance
To help understand how to apply for, and how we decide on, approval of employment of an individual who has been struck off the roll of solicitors, suspended from practice or whose practising certificate has been suspended due to bankruptcy (Section 41 of the Solicitors Act 1974) or who has been made subject to a control Order (Section 43 of the Solicitors Act 1974).
This guidance sets out how you can apply to us for written permission, and how we will decide on your application.
This guidance should be read in the context of our decision making and other guidance documents listed at the end. We will update this from time to time.
There are some circumstances where you must obtain our approval before you can employ or remunerate certain individuals.
Section 41 requires you to obtain our approval where, to your knowledge, a person has:
- been struck off the roll
- been suspended from practice
- had their practising certificate suspended while they are an undischarged bankrupt.
Section 41 applies to you if you are a solicitor or an REL. If you are a recognised body, Section 9 paragraph 9 of Schedule 2 of the Administration of Justice Act 1985 applies section 41 to you. We apply this legislation to all firms we regulate, including licensed bodies through rule 10.1 (a) and (b) of the Authorisation of Firms Rules.
Section 41 of the Solicitors Act 1974 deals with solicitors who are prevented from practising because they:
- have been struck off or suspended from the roll
- are prohibited from going back onto the roll
- have had their practising certificate suspended due to bankruptcy.
Section 43 deals with our ability to make an order preventing you from employing or remunerating a non-authorised person without first getting our written permission. This is because they have either committed a criminal offence or their conduct is such that they need our approval to work at a practice. Find out more in our guidance on non-authorised persons.
Someone is involved in a legal practice if they:
- are working for or remunerated by a solicitor in connection with the solicitor's (or REL) practice
- are working in the name of, or under the direction or supervision of, a solicitor (or REL)
- are working for or remunerated by a firm we regulate
- are working for or remunerated by a manager or employee of a firm we regulate in connection with its business
- are a manager of a firm we regulate
- own or plan to own part or all of a firm we regulate.
If you knowingly employ or remunerate in connection with your legal practice any solicitor who is subject to a section 41 Order without seeking our prior approval, you will be acting in contravention of that Order (section 41 (4) of the Solicitors Act 1974).
Similarly, if you knowingly employ or remunerate any person who is the subject of a section 43 Order, without seeking our prior approval, you will be acting in contravention of that Order, according to section 44 (2) of the Solicitors Act 1974.
Sections 41(4) and 44 (2) of the Solicitors Act 1974 give us statutory powers to initiate regulatory action against you for such contraventions.
If the individual you want to employ is subject to section 41 or 43 but is seeking a review against such an Order (or related conviction or finding), you may still apply for permission to employ them while the review is underway. If we decide to grant the approval, our decision will remain in place in the event of the individual's application for review being unsuccessful.
How to apply
You, as the proposed employer, and not the person you want to employ, must apply to us for approval. The individual you want to employ can give us information, but they cannot apply themselves or withdraw an application or appeal our decision. To apply, use our application form (PDF 4 pages, 222KB)