Guidance: concern that lawyer may intimidate employee during investigations

The Law Society's rules and ethics committee has delayed issuing guidance on whether it is appropriate for an employer's solicitor to sit in on interviews with employees during Health and Safety Executive (HSE) investigations into work-related deaths and injuries.


Guidance drafted by the committee stated that the presence of the employer's solicitor would be difficult to justify, even with the consent of the employee, as the solicitor would be obliged to pass on to his client (the employer) all information material to his business, whether or not to do so would be detrimental to the employee.


This would put the solicitor in the position of taking an unfair advantage of the employee and could give rise to a potential conflict situation. The guidance also raised the concern that the presence of the employer's solicitor may intimidate the employee and make him reluctant to say anything that may adversely affect their employment, which would not be in the public interest.


The committee was due to decide whether or not to adopt the guidance in October, but following representations made to it by employer solicitors, delayed the decision to consider amendments.


Chris Jackson, partner at Bristol firm Burges Salmon, said: 'We have asked the committee to consider how a balance can be achieved between the competing interests - a blanket ban would not achieve this.'


David Young, a partner at national firm Eversheds agreed: 'What all of us seek is a proper balance between the need of the HSE to conduct its investigation, the employer's reasonable entitlement to know what direction the investigation is taking, and the employee.'


Dr Simon Joyston-Bechal, head of health and safety at Pinsent Masons, added: 'With proper safeguards in place, the concerns raised by the Society can be adequately met.'


However, David Bergman, director of the Centre for Corporate Accountability, an advisory and research organisation that promotes work on public safety, supported the original draft.


He said: 'From our perspective the position is straightforward - it is clearly inappropriate for the employer's solicitor to be present.'


The guidance is expected to be issued in February 2006.