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Embargoed:
Friday 2 December, 6.00 am
Death
and injury investigations
compromised by employers' solicitors
Investigations by the Health and Safety Executive
(HSE) into work-related deaths and injuries are being
compromised by the presence of employer solicitors
at interviews of employees by HSE inspectors, the
CCA has told the Law Society.
The Law Society's Rules and Ethics Committee will
decide on Friday 2 December whether or not to adopt
draft guidance which states clearly that it would
be ethically wrong and a potential conflict of interest
for employer solicitors to 'sit in' on interviews
which the HSE are conducting with an employee even
when the employee 'consents' to their presence.
The Law Society has come under pressure from a group
of employer solicitors - including large corporate
firms Eversheds and DLA - not to accept the guidance.
The Rules and Ethics Committee delayed approving the
guidance at a meeting in October after representations
from these firms
The CCA is very supportive of the guidance. David
Bergman, Director of the CCA said:
"It
is so clearly wrong for employer solicitors to be
present at these interviews. Employees feel pressured
into allowing an employer representative present
in the room and then, with the solicitor in the
room, feel unable to tell the investigator information
that criticises the employer. This can seriously
impact upon the ability of the HSE and other requglatory
bodies to carry out proper investigations into the
conduct of employers. "
The
CCA have sent two submissions into the Law Society
in response to lobbying by employer solicitors. To
download the submissions, and the Law Society draft
guidance, click here.
The
Law Society draft guidance says that "If the
solicitor in attendance is not representing the employee
at that interview it is difficult to see how his presence
can be justified." This is because "the
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.
"
The draft guidance goes onto say that:
"If the employer’s solicitor purports
to represent the employee at that interview then
questions of a direct conflict of interest arise,
whereby the solicitor has a duty to pass information
on to his client (the employer), which would conflict
with the duty of confidentiality to the employee
(Principle 16.01)."
The
draft guidance also makes clear that the presence
of employers' solicitors at the interview raises further
concerns:
"Is
the presence of the employer’s solicitor intimidating
the employee and stopping them from making a full
and proper disclosure of facts relevant to the enquiry?
Employees may be understandably 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.
The presence of such a solicitor may have the effect
of intimidating the employee in what they will say.
"
It
also says:
"[The employer solicitor] Being in a position
to communicate information about what the employee
can say or the line of questioning being taken by
the HSE to the employer may frustrate the broader
investigation."
The
CCA is fully supportive of the principles and have
informed the Law Society of a case where an employee,
a witness to a fatality, told the CCA that she felt
pressured into agreeing that the employer lawyer could
attend the interview and then felt unable, because
of the solicitor's presence, to provide proper information
to the HSE inspector.
Downloadable
documents
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The
Centre for Corporate Accountability is a charity
advising those bereaved from work-related deaths,
and working on issues of safety, law enforcement
and corporate accountability.
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