The last 15 years has seen an unprecedented change to the responsibilities placed on employers and their obligations towards staff. As a result of this, employers are more cautious in their dealings with staff due to the risks of getting things wrong. Because of this, there is now a greater reliance on obtaining advice which in turn has seen the creation of more and more businesses operating as Employment Law Consultants.
Although the quality of advice delivered by Employment Law Consultants can vary significantly from one to the next, it is important to realise that when it comes to engaging the services of an adviser, it is not actually just their knowledge and experience of the law which counts.
There are very significant advantages of engaging the services of a Solicitor rather than an Employment Law Consultant which include the fact all Solicitors are legally required to have professional indemnity insurance in place whereas many Employment Law Consultants do not. Secondly, all Solicitors are governed by a professional body which requires them to act in their clients’ best interests at all times whereas again, this is not always the case with Employment Law Consultants. Most importantly, Solicitors benefit from a concept known as legal professional privilege. It is a concept however which does not apply to an Employment Law Consultant. This puts clients of an Employment Law Consultant at a real and significant disadvantage. What is of more concern is the fact that many Employment Law Consultants fail to advise their clients of the issue. This is sometimes due to the fact that Employment Law Consultants are simply ignorant of the concept altogether and in other instances it is down to a desire to avoid highlighting the problem for fear of losing business.
The concept of legal professional privilege basically means that all correspondence between a Solicitor and their client is confidential and does not have to be disclosed in the course of Employment Tribunal proceedings. This means that any discussions and/or correspondence between you and your adviser will remain confidential provided your adviser is a Solicitor. The rule does not apply however to unqualified advisers such as Employment Law Consultants.
To give an example, in a redundancy situation, it is not unusual for an employer to have identified those employees it wishes to make redundant before starting the consultation process. In order to secure the correct outcome, an employer often carries out a dummy scoring exercise in private in order to make sure that the criteria they are using will result in the “correct” employees being selected for redundancy. This allows an employer to test out the selection criteria before disclosing it to staff in order to iron out any potential issues.
If this exercise has been carried out with a Solicitor, it will not need to be disclosed as part of any unfair dismissal complaint by an employee. If, however, an employer was advised by an Employment Law Consultant, any correspondence, notes or documents relating to this exercise would have to be disclosed. This would of course not only be a source of great embarrassment to an employer but would directly affect the outcome of the litigation, almost certainly resulting in a finding of unfair dismissal.
Some Employment Law Consultancies attempt to get around the issue of privilege by engaging the services of Solicitors and Barristers to supervise their Consultants who are giving the advice. It is possible this arrangement can work provided the Consultants are supervised closely enough and the ratio of supervising Solicitors to Consultants is acceptable. Nevertheless, this does not extinguish the risk entirely.