Qualifying experience

What is Qualifying Work Experience?

As well as having to pass the Solicitors Qualifying Examination (SQE), the other requirement for qualification as a solicitor under the regime for solicitors in England and Wales (in addition to meeting the SRA’s character and suitability requirements) is that the applicant has two years’ of ‘qualifying work experience’ (QWE).

There is both Solicitors Regulation Authority (SRA) and Law Society guidance as to what QWE is or can be. The definition given by the SRA is, “any experience of providing legal services that helps a candidate to develop some or all of the competences required to practise as a solicitor. This could include, for example, working in a law firm, as a paralegal, as a legal apprenticeship or part of a placement during a degree”. For completeness, “legal services” are to be interpreted as “legal activity” as defined in the Legal Services Act 2007.

Much of the SRA’s guidance on QWE is aimed at the individual considering or intending to pursue the SQE route to qualification. However, there is a fair bit that organisations need to grapple with if they are employing individuals who are following the SQE route or are providing work experience to these individuals. To be frank, the SRA’s guidance for employers is a thinly disguised expectation, conscious or unconscious, that most QWE will be something akin to a training contract, even though the concept of QWE is supposed to be so much wider.

So, what do employers need to know? We will take it as read that the work or work experience involves the provision of legal services 

How does QWE work in practice?

There are certain surprising aspects to QWE. The first is that the SRA will not advise as to whether an individual’s situation is QWE. If in doubt, they advise discussing it with the confirming solicitor or compliance officer for legal practice (COLP). Further, the SRA is also not concerned with actual evidence of QWE: rather, it will rely entirely on the confirmation given by a solicitor or COLP of an individual’s experience, and not look for any evidence beyond this. 

Another aspect is that, although the requirement is for two years’ full-time QWE, or the equivalent of two years part-time, the SRA has said that it will not define what “the equivalent of two years part-time” means but that it expects “those signing off qualifying work experience to take a common-sense view of what this means”. An interesting stance by a regulator.

It is also surprising – remarkable perhaps – that neither the quality of the work experience nor the individual’s competence is relevant. Confirming QWE appears to be a purely bureaucratic exercise, which records that the individual did the work when they said they did, that it involved the provision of legal services, and that during that time they were provided with opportunity to develop some or all of the SRA’s competences. It does beg the question of the value of QWE if there is no qualitative evaluation involved, particularly when the SQE is the only measure of competence under the new regime. Even though the SRA says that work experience which allows an individual to develop one competence is not QWE, two years of work experience which allows an individual to develop only two competences can be QWE. It could be argued this does not replicate the rounded experience of a two-year training contract. 

What employers need to know

1. Unlike a training contract (meaning the period of recognised training), there is no requirement for the individual to be supervised by a solicitor. The only requirement is that the individual is given the opportunity to develop some or all of the competences in the SRA’s Statement of Competence. That the individual has been given that opportunity – irrespective of whether the individual has developed any competences – just needs to be confirmed, along with the period of their work experience, and that no issues arose during the period of work that raise a question as to the individual’s character and suitability. The confirmation must be given either by a solicitor within the organisation, who must be qualified in England and Wales, or by the organisation’s COLP. A barrister is not eligible to confirm QWE.
2. If the organisation has neither a solicitor nor a COLP, a solicitor outside the organisation (qualified in England and Wales) will need to be sought to give the necessary confirmation. In that situation, the external solicitor would need to review the work the individual has done in the organisation. 
3. Although the solicitor confirming QWE must be qualified in England and Wales, the work experience does not need to be obtained in England and Wales. Experience can be acquired overseas even if the individual is not working in English law. This is because the SRA is concerned about the individual obtaining experience of practice, rather than acquiring knowledge of English law.
4. The organisation at which the individual obtains work experience need not be regulated by the SRA. This is what enables experience in university legal advice clinics or in-house legal departments, or other non-SRA regulated or unregulated providers of legal services to count as QWE – assuming the experience meets the other requirements of provision of legal services such as opportunities to develop some or all of the competences etc.
5. Note that the work experience can be paid or unpaid.

What employers can expect

With the training contract, the organisation will have employed the trainee knowing that it is required to provide training and supervision for two years in order that the trainee may then qualify as a solicitor. With QWE, an employer may have employed an individual in a paralegal role, and for that purpose only, with no expectation or promise of career progression or a training contract. However, the individual may be able to use the experience they have gained in their employment to qualify as a solicitor – if they are able to pass the SQE and have either two years as a paralegal in the firm, or accumulated two years of paralegal or other relevant work experience. 

This means that an employer may receive requests from currently employed paralegals or previously employed paralegals to have their work with the employer confirmed as QWE. As explained, by confirming work experience, an employer is not confirming an individual’s competence, and the SRA therefore expects employers to be co-operative in providing the confirmation unless there are good reasons not to. In extreme circumstances, such as where an individual was employed by a sole practitioner who has ceased practising, the SRA may provide the necessary confirmation. However, although a request for QWE to be confirmed cannot be unreasonably refused, there is no obligation on the firm to employ the individual when they qualify as a solicitor.

Although the SRA does not require organisations which provide work experience to do more than provide opportunity for the individual to develop some or all of the competences, the SRA “expects” that the employer or organisation will:

• “[expose] people who are doing QWE to a wide variety of tasks and legal matters which help them to develop some or all of the competences [the SRA specifies] in the Statement of Solicitor Competence
• [enable] those doing QWE to learn from experienced practitioners how to behave ethically and in accordance with the Codes of Conduct
• [provide] opportunities for those doing QWE to be effectively supervised and to reflect on their work and feedback to help them identify their strengths and areas where they still need to develop.”

There is no regulatory imperative for this, however. What is a regulatory requirement is that solicitors and COLPs must, to quote the SRA, “… comply with the SRA’s Principles and Code of Conduct to act honestly and fairly at all times, to supervise effectively and not to abuse their position by taking unfair advantage of individuals. We may act against a solicitor or COLP if they refuse to confirm QWE that meets our criteria or where they have breached our Principles and Code of Conduct in the way they have provided QWE”.

‘To do’ checklist

As a start, organisations which either intend to provide QWE or which find themselves requested to confirm previous work or work experience as QWE, should set-up appropriate record-keeping and sign-off systems such as the following.

• Keep records of work done by non-qualified employees, particularly paralegals. The SRA advises individuals who might want to have QWE confirmed to consider “whether the organisation has a system or process in place to help [the individual record their experience]” but states that “the organisation should support you with collating your evidence.”
• Keep a record for non-qualified employees and work experience individuals of any issues that raise questions as to character and suitability
• Decide who will be responsible for confirming QWE. This can be a solicitor qualified in England and Wales or the COLP. If there is no solicitor or COLP, the individual needs to find a solicitor external to the organisation to do this.

Organisations should also decide the extent to which, and how, they will respond to the expectations of individuals, raised by the SRA’s guidance, that: 

• the work won’t consist of mostly repetitive and limited administrative tasks and legal transactions
• the individual can discuss their career aspirations with the organisation and find out what support the organisation can offer if the individual decides to qualify as a solicitor
• someone in the organisation will be responsible for the day-to-day supervision of the individual’s work, and will satisfy themselves about the quality of the individual’s work
• someone will provide formative feedback; check that the individual is being given access to “a good range of tasks”; and make sure the individual is learning to behave ethically and in accordance with the Codes of Conduct.

None of these are actual requirements for organisations but it is best to be prepared that they may be expected. It does sound remarkably like a training contract though.