The perils of employment

Should employers have the right to sue their assistant solicitors? 'I had no idea that I could be sued,' is the shocked response I get from most assistants when they are asked.

Firms have insurance to cover successful claims made against them as a result of negligence on the part of their employees.

However, many firms have large excesses, and once a claim has been met by the insurers the premium may increase.

It is these 'expenses' that an employer could seek to claim from an assistant solicitor or even a salaried partner.Have you ever woken up at night, worrying about a file? This is probably not because you thought that if negligent your employer could sue you, but rather because you did not want to be negligent.

How would you feel knowing that you could be sued? You have no insurance cover, and if a judgment were obtained, the first port of call would be your assets.Gathering information on this phenomenon is not easy.

A recent appeal by the Young Solicitors Group led to a number of e-mails recounting tales of colleagues who - if not actually being sued - were or had been threatened with legal action by their principals.I recently spoke to a member of the Solicitors Assistance Scheme, which offers free help to lawyers with employment problems.

At least one out of every six telephone calls received by the scheme comes from an assistant concerned about a possible negligence claim.

Often, the threat of litigation is used as a bullying tactic and may not be pursued further.

Still, the number of incidents is much higher than any of us had anticipated.Interestingly, it is those assistants at smaller firms with fewer partners who are at greater risk.

The financial effect of a claim against such a firm may have more of an impact and some employers believe that it is their right to sue their assistants for any loss suffered.

However, these firms are not acknowledging their moral responsibilities as employers.

Supervision is the key, and stories recounted tell of assistants being asked to deal with matters that are beyond them because of a lack of experience and/or knowledge.

An employer must appraise himself of what is going on and that may mean spotting an employee who is overburdened and unable to perform as well as expected.The Young Solicitors Group has been alive to this issue for 15 years.

The wheels of progress within the Law Society move slowly but support is there and it was thought that, finally, a practice rule would be passed in June 2001 that would prevent principals from suing assistants.

However, it was pointed out that the Human Rights Act specifically states that everyone should have an unfettered right to sue.

The Master of the Rolls, Lord Phillips, rightly halted the process of implementing a rule so that additional consideration could be given.And that is where we are now.

The Human Rights Act is meant to protect.

Certainly, it is doing its job - for the employer.

But who protects the assistants who are lying awake worried about their families and homes? A number of alternative solutions have been put forward.

One solicitor contacted me to tell me that he always ensures that his employers agree to indemnify him against any claim that is made against him during the course of his employment, be it from a third party or the employer itself.

Perhaps that is the solution.

Jill Greenfield is chairwoman of the London Young Solicitors Groupl The forum will be held at 6pm, 31 January at the Law Society in London