COVID-19 EXPERT LEGAL INSIGHTS

FAQs for working remotely and the supervision of trainee solicitors

Last updated: 5 May 2020

The following FAQs set out the key regulatory and employment law considerations that may arise at this time of crisis for law firms, their trainee solicitors and law students.

Please note that the questions and answers on this page are for general information only and must not be used as a substitute for legal advice. You should always take legal advice which is tailored to your specific circumstances.

Trainee regulatory requirements

 

Which regulatory requirements set by the Solicitors Regulation Authority (SRA) will apply to trainee solicitors currently in their period of recognised training (“PRT”) (i.e. undertaking their training contract)?

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What do the 2014 regulations say about the supervision of trainee solicitors?

  • In terms of supervision of the PRT, trainee solicitors need to be “appropriately supervised” by solicitors and other individuals who have the necessary skills and experience to provide effective supervision.  This is to ensure that the trainee has relevant learning and development opportunities and personal support and that the trainee knows the requirements of the SRA Principles and is able to comply with them. Supervision also needs to include regular review and appraisal of the trainee’s performance and development, including their record of training. This record of training needs to be maintained by the trainee and includes details of the work performed and reflections on that performance and needs to be verified by those supervising.  
  • Whilst the SRA states that it may monitor the training the firm provides, it remains silent on what this might entail, save to say that it could include a visit from the SRA.  Nonetheless, it is very unlikely the SRA will visit firms (especially those whose actual office spaces are closed) during this period of remote working.

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What do the 2019 regulations say about supervision of trainee solicitors?

  • In terms of supervision of the PRT, trainee solicitors need to be “appropriately supervised” by solicitors and other individuals who have adequate legal knowledge and experience in the practice area they are supervising and the necessary skills to provide supervision which is effective. This is to ensure that the trainee has applied and developed the practice skills they will be required to use when qualified. Supervision also needs to include regular appraising of a trainee’s performance and development, as well as keeping their training record under review.  This record of training needs to be maintained by the trainee and includes details of the work performed and reflections on that performance and needs to be verified by those supervising.

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Remote working
 

What is the SRA’s current stated position as to the impact of remote working as a result of Covid-19 upon firms seeking to comply with their supervision obligations?

  • The current message from the regulator seems to make clear that it will be for firms to satisfy themselves that they have appropriate and adequate measures in place to ensure they can continue to effectively supervise their trainees. What this looks like in practice will vary from firm to firm, depending upon the size of the firm, the number of trainees and the nature of the work being undertaken by those trainees.
  • Crucially, the SRA has confirmed that it would accept firms putting in place measures which enable them to supervise trainees who are working from home.  This is a very sensible approach as it would certainly pose a higher risk of exposure to Covid-19 to trainees and those supervising them if there was a requirement to be in the workplace.
  • The SRA has stated that it recognises that trainee solicitors and law firms are concerned about the impact of a prolonged period of remote working on their PRT, including the need to physically attend courses which they need to complete successfully before their PRT can be signed off as completed.  The SRA intends to be as flexible as possible, while still making sure solicitors who do qualify during this time have met the required standard. The use of the terminology “appropriate supervision” already provides a degree of flexibility for firms and, as stated above, firms will be expected to adopt processes which work for them but still meet this requirement. 
  • Special care should also be taken to monitor the mental health and wellbeing of the trainee during this difficult time and to guard against undue stress being placed on the trainee.  For example, it is best practice to monitor the trainee’s workload by ensuring regular communication with them and putting in place relevant support.

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What will the position be for trainees who are due to be admitted to the roll in September but are unable to complete the Professional Skills Course (“PSC”)?

  • The SRA has asked that individuals or any firm with trainees in this position contact the SRA as soon as possible. The SRA states that it is looking at possible solutions, including working with training providers to determine if there is scope for assessments to be completed online. 
  • Switching to online/remote assessment will of course be challenging, given some of the core subjects of the PSC usually require face-to-face assessment. Nonetheless, the SRA has stated that it has started to accept applications from PSC providers to temporarily move to online/remote proctoring of PSC assessments and assessment of oral-based skills via video-link.
  • In making any such application, PSC providers will need to demonstrate how the change in approach they are proposing will maintain security and integrity of the overall qualification – and before making any such changes to any assessments, they must apply to the SRA for approval. The SRA has stated that it will consider these applications on a case-by-case basis and any approval granted will be subject to SRA review at any time.
  • Despite these possible temporary changes, the SRA recognises that it might still not be possible for individuals to complete the course in time for their anticipated point of admission. If individuals are unable to complete the PSC in time for admission as a solicitor – because of the current pandemic – they can apply to the SRA to defer completion of the PSC, but the PSC will need to be completed within 12 months of being admitted.
  • If individuals find themselves in this situation where they need to defer completion of the PSC, they must first apply to the SRA for a “waiver” – in essence, to waive part of regulation 3A.1(a)(ii) of the SRA Authorisation of Individuals Regulations. If an application for a waiver is successful, the individual will need to provide evidence to the SRA within 12 months that they have successfully completed the PSC. This could be a certificate or a note on headed paper from their PSC provider. The SRA will then seek to very this information with the provider.  The SRA can of course take regulatory action against those who breach the conditions under which the waiver was granted to them.
  • It is worth noting that the SRA’s requirements state that firms have to pay for a trainee’s first attempt at the PSC – the SRA has confirmed that this obligation will continue should the individual find that they have to take the PSC after admission as a solicitor. The SRA advises that individuals in this situation discuss the position with their firm and confirm what the proposed payment arrangements will be.

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What if a firm is seeking to extend the PRT for business reasons in light of COVID-19 but an individual has satisfied the SRA’s requirements in respect of the PRT?

  • Under the SRA Training Regulations 2014 - Qualification and Provider Regulations (the 2014 Regulations), a trainee should be able to apply for admission when they are in a position to do so. They should not be delayed if they have met the SRA’s requirements for admission. If necessary, the SRA has the power to recognise the PRT under regulation 5.6 in these circumstances. However, the SRA is clear that it cannot comment upon the terms and conditions of a trainee's contract of employment and suggests seeking employment legal advice.

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What if firms consider that individuals are unable to gain experience in three distinct areas of law as required by the SRA Training Regulations 2014 - Qualification and Provider Regulations (the 2014 Regulations)?

  • If a firm is in this situation, the SRA has stated that the firm can apply for a waiver of the SRA’s requirements for:
    • it to provide trainees with experience of three distinct areas of English and Welsh practice (regulation 12.1(b) of the 2014 Regulations); and
    • those trainees to meet the requirement to complete a PRT (regulation 5.1).
  • The SRA would expect the firm to complete one application that covers all affected trainees (rather than one per trainee). This needs to include all relevant trainees’ names and SRA numbers (where available).The firm will need to confirm in its application that these trainees will still meet the Practice Skills Standards, despite not completing three distinct seats covering these required distinct areas of law. If a firm is unable to confirm this, it should discuss this with the individual(s) and consider whether their training needs to be extended. If a firm extends a trainee's PRT, the firm must email the SRA to confirm the revised end date.

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For how long can a trainee solicitor be supervised remotely?

  • In the current circumstances that we find ourselves living in, the SRA’s position is that there is no maximum period, as long as firms have in place sensible arrangements which enable supervisors to review work remotely. If this supervision is effective and both the trainee and supervisor comply with their obligations, there is no reason that these arrangements should affect the duration of the PRT.

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Disciplinaries or investigations
 

What happens if a firm needs to take any steps as a result of trainee or supervisor failings?

  • In the event that any issues do arise in this prolonged period of remote working – for example, (suspected) misconduct on the part of the trainee or the supervisor – from a regulatory perspective firms will need to be able to demonstrate that they have acted in accordance with the law in taking whatever action is appropriate or necessary under the circumstances, and that they exercised judgement in putting in place the supervision arrangements that they did. Firms will remain accountable for the decisions they make in respect of trainee supervision and any further steps they need to take. Ultimately, this aligns to the SRA’s overall approach to enforcement.
  • Firms should address performance, conduct, grievance or other issues in line with relevant internal policies and procedures, adapting them as necessary in light of the current circumstances. For example, this could be conducting hearings via phone or video call, rather than in person. 

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Self-isolation and sickness absence
 

If a trainee solicitor needs to self-isolate due to Covid-19, could this impact the duration of their PRT?

  • As with any employees, trainees may need to self-isolate due to COVID-19, in line with the applicable Government advice. If a trainee can continue to work whilst self-isolating, then they should do so as long as firms have in place arrangements enabling appropriate supervision. This should not impact the overall duration of the PRT. If a trainee becomes more unwell during their period of self-isolation to the extent that they are unable to work, they should simply be treated in line with the firm’s arrangements for sickness leave and pay.  This will be set out in their employment contract or the firm’s policies and procedures and may have been updated under the current circumstances, for example, to take into account the recent temporary legislative changes to the right to claim Statutory Sick Pay.

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If a trainee solicitor has a period of sickness absence due to Covid-19, could this impact the duration of their PRT?

  • Clearly, this would depend upon the nature and extent of the sickness absence, but the SRA’s position is that it expects firms to treat any period of sickness leave due to COVID-19 the same as it would any other period of sickness leave during the PRT.  Any arrangements for sickness leave should already be covered under the terms and conditions of employment or in relevant firm policies and procedures relating to sickness absence.
  • If the trainee is on long-term sickness absence related to COVID-19, again this should be treated in the same way as any other period of long-term sickness absence during the PRT. In such cases, there may be a need to extend the PRT where the trainee is unable to attain the skills required of a solicitor upon qualification. The firm’s training principal will need to determine whether any extension to the PRT is necessary, and if it is, they will need to notify the SRA, by email, of the revised date the PRT will end.

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Redundancies
 

If a firm is struggling financially and is forced to make staff redundancies, can this include trainee solicitors?

  • It might be necessary for firms to carry out redundancies during this difficult time.  In which case any such process will need to comply with the law. Please see ‘Fair Redundancies – Top 10 tips for Employers’.  However, the position in relation to trainee solicitors is different to ordinary employees, on the basis that they are employed as apprentices. This gives trainee solicitors certain protections, for example, their contract can only be terminated in limited circumstances. Such circumstances would usually include gross misconduct or a material breach of contract on the part of the trainee solicitor, or the firm being forced to close down permanently or the employer’s business undergoing a fundamental change in its character. In the event that the firm is forced to close down permanently this would amount to a redundancy situation and a redundancy process should be followed in the usual way.
  • If a trainee’s employment is terminated for any reason other than the limited exceptions that apply, then it is strongly recommended that they enter into a settlement agreement with you under which they waive the right to bring any claims against the employer in connection with their employment or its termination.
  • Case law has established that terminating a trainee solicitor’s contract of employment outside of these limited circumstances (e.g. because you cannot afford to keep them on or on spurious grounds where the underlying reason is affordability) is likely to amount to a breach of contract. This obviously has major implications for the employer. First, it may mean that it is impossible to legally make an apprentice or trainee redundant. It also means that businesses which do make apprentices or trainees redundant may need to make significant payments to those individuals, in order to settle any potential claims. For example, the Court of Appeal case of Dunk v George Waller & Sons [1970] 2 QB 163  held that in such circumstances apprentices are entitled to damages for loss of earnings and training for the remainder of the training period and for loss of future career prospects.

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Is there a difference between a ‘traditional’ apprenticeship and a ‘modern’ apprenticeship?

  • Previously, a distinction was made between an apprentice’s rights under ‘traditional’ apprenticeships and so-called ‘modern’ apprenticeships. It was widely understood that under a traditional apprenticeship, the apprentice was protected from redundancy, whereas modern apprenticeships did not include the same provisions. Recent case law suggests, however, that standard redundancy is also not permitted in modern apprenticeships.  So do not make this assumption, without seeking specialist advice.

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Coronavirus Job Retention Scheme
 

What is the Coronavirus Job Retention Scheme (CJRS) and how might this help firms?

  • The CJRS enables employers to “Furlough” employees.  This essentially means employers can put employees on an agreed temporary leave of absence.
  • The CJRS can help employers to retain employees on paid temporary leave under circumstances where the employee might otherwise have been made redundant. Through HMRC, the Government will subsidise the earnings of furloughed employees (up to 80% of pay, capped at £2,500 per month per employee, plus employer’s national insurance contributions and minimum auto-enrolment payments). 
  • Employers are entitled to continue to pay employees full pay during furlough leave, but they are not obliged to do so.  However, withholding 20% of an employee's salary will amount to breach of contract and unlawful deduction of wages unless the employee gives their consent.
  • For further information please see ‘the Coronavirus Job Retention Scheme: FAQs for UK Employers’.

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What if a firm puts a trainee solicitor on furlough?

  • A firm may find that it has no choice but to furlough a trainee on the basis that the firm is unable to provide the required level of training or appropriate supervision to that individual during this pandemic.
  • If a firm furloughs a trainee, while it will need to carry out the same process as it would in respect of any other employee, there is no immediate need to take any steps from a regulatory perspective. However, once the furlough ends, a firm will need to discuss with the trainee whether the PRT needs to be extended.  Ultimately, this will be dictated by the duration of the furlough period as a proportion of the overall PRT. The SRA has indicated that owing to the exceptional circumstances of the Covid-19 outbreak, it will accept a period of furlough of up to three months as counting towards completion of the PRT. This is provided that the firm’s training principal is satisfied that the trainee has met the required standard to be admitted to the roll.  The SRA would usually expect a furlough lasting longer than three months to lead to an extension of a trainee’s PRT but the SRA recognises that there will be a range of individual circumstances that may impact this.  For example, whether the individual has any previous relevant work-based experience that would, under SRA regulations, count towards the PRT. If, however, the PRT does need to be extended, it will be for the firm to notify the SRA of the extension period it has agreed with the individual concerned.
  • Rather helpfully, the SRA has stated that it will be as flexible as possible in addressing the issue of furlough while still ensuring that trainee solicitors who qualify as solicitors within this uncertain period have met the required standard to be admitted to the roll.

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Students
 

What about students who are about to graduate with a law degree or those currently undertaking the Graduate Diploma in Law (GDL) whose final exams would have been this summer?

  • The SRA has confirmed that these students must still be formally assessed (specifically that by the time a student graduates they should have been properly assessed in all Foundation of Legal Knowledge subjects and achieved a pass mark of at least 40% in all foundation subjects) but the SRA will not specify the form that such assessments must take.  The same applies in respect of providers determining whether a “no detriment” policy is appropriate in relation to the course they are providing. In other words, this will be a matter for the education providers to determine what works best vis-à-vis the courses they are running. This could be online, open book or remote assessments and the SRA has asked that training providers inform the SRA if they are introducing alternative assessment arrangements during this period.
  • Training providers cannot cancel the assessments that are due to take place but they can postpone assessments of subjects into later academic years. In practice, this is really only like to be effective in relation to part-time GDL courses, where individuals are only part-way through their studies or in relation to law degrees where students are not in their final year.

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What about students who are about to undertake the final assessments on the Legal Practice Course (LPC) this summer?

  • The SRA has confirmed that the current assessment requirements for all outstanding elements of the LPC will be relaxed to some extent depending on the LPC subject/assessment.  This is with a view to enabling the majority of individuals to complete their studies and commence training contracts which are due to commence in September 2020. 
  • LPC providers will need to demonstrate how the change in approach they are proposing will maintain security and integrity of the overall qualification – and before making any such changes to any aspect of the course (i.e. core subjects, elective subjects and skills assessments), they must apply to the SRA for approval. The SRA has stated that it will consider these applications on a case-by-case basis and any approval granted will be subject to SRA review at any time.
  • For the core LPC subjects, assessments will still need to be supervised but the SRA will consider applications from LPC providers to switch to online or “remote assessment invigilation” known as “proctoring”. 
  • For the elective subjects and the skills assessments, the SRA’s position is that LPC providers can make alternative assessment arrangements as they see fit, subject to SRA approval.
  • Finally, the SRA has agreed that, in this period, trainees can commence their training contracts before completing the LPC which they have been undertaking on a full-time basis, with the caveat that the LPC must still be completed at a later date. Training providers will need to consider the impact of this and devise a strategy for these individuals to complete the LPC at a later date.

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Other key considerations in respect of the PRT

  • Consider where there is scope to reduce the PRT on the basis that the individual has previous relevant legal experience which could now be taken into account. This may be an option to explore, which wasn’t previously considered necessary under a formalised two year PRT or if your firm is forced to completely close down. If the trainee has relevant work-based experience (note the slightly different requirements for this under the 2014 and 2019 regulations), a firm might be able to reduce the overall duration of the PRT by up to six months. This is at the discretion of the firm, not the SRA.  This is another reason why maintaining and regularly updating a training record is so important.

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The content is accurate on the day that it is published and we will be keeping it updated as and when there are further updates to report.

Please also see our firm’s COVID-19 Updates page for other expert legal insights relating to this pandemic. 

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