It is inappropriate for an employer's solicitor to sit in on a Health and Safety Executive (HSE) inspector's interview with an employee, the Law Society's rules and ethics committee said this month.

To do so, a solicitor would be 'exposing himself to the possibility of obtaining information detrimental to the employee, which he would be duty bound to pass on to the employer'.


Apart from the possibility of a conflict, the committee said the public interest also required this, as employees may be reluctant to say anything that may have an adverse effect on their employment in the presence of their employer's solicitor.


If the employer's solicitor is to be present, which the guidance said was 'difficult to justify', he must ensure the employee understands he is not acting for them, owes duties only to the employer, cannot advise them, and that anything they say will be passed on to the employer.


Committee chairman Edward Solomons said it had received extensive assistance from a number of affected parties who held strong but competing views.


He said: 'Not everyone will have got out of it what they hoped, but the guidance is what the rules of practice and interests of the clients require. The extent to which it resolves the issues remains to be seen. Those who don't follow it may well find the issue determined in the courts or disciplinary tribunals.'


The HSE welcomed the 'clear, common-sense guidelines', which a spokesman said would ensure employees felt free to provide whatever evidence was relevant to the investigation.


But some practitioners were less happy. Chris Jackson, a partner at Bristol firm Burges Salmon, said there had been some improvements, but overall the guidance removed the discretion that should rest with the employer's solicitor.


He said: 'Employers' solicitors are aware the situation is difficult and of the potential for conflict, and should be free to evaluate each case.'