Employment and Labour Law Blog: Occupational Health and Safety – Privilege

Protecting Employers

All employers have a statutory duty always to do everything reasonable in the workplace to protect the safety of their employees. This includes being aware of the hazards on the job, preparing proper manuals and programs to train everyone how to work safely, implementing the training, ensuring employee competence and vigilantly monitoring day to day activities.  A well-organized comprehensive plan properly pursued will meet the legislated standard for employee safety.  

But, who protects the employer?

What if the employer does not know the law?  Or does not have written programs?  Or formal training, or scheduled follow up or enough budget to hire a safety professional?

How does an employer who believes it may not have done everything reasonable to be safe, protect itself while it catches up?

One of the best protections is to hire a lawyer to help determine what to do and how to do it responsibly.  This does not mean that the lawyer will actually analyze all the workplace issues and write the necessary workplace manuals.  Specialists can do that more efficiently and at lower cost.  However, the lawyer is the key to protecting the employer while the upgrading process is ongoing.  This protection comes from the ability of the solicitor to keep from exposure all of the information collected in the process.  If the lawyer is involved in directing the inquiry to collect the information needed to give appropriate legal advice, to the client, all the information is protected.  If the lawyer is retained, to give the client legal advice about compliance with the Occupational Health and Safety Act and if the lawyer, instead of the client, retains the advisors to help analyze the problem, their reports are protected.  If they propose the solutions necessary to comply, the analysis and proposals are privileged.  In our legal system, no one can force a client or the lawyer retained to divulge the information created in the context of providing legal advice.  This legal privilege is so the client may secure advice without fear that things told to the lawyer will be exposed.  The client may tell the lawyer the whole story.  

So, if an employer wants a legal opinion about how bad the safety situation is and how much needs to be done to achieve compliance, he should retain counsel.  That counsel can arrange for a thorough safety audit to be performed under his instruction to collect and assess facts to help prepare the legal opinion.  If the audit reveals 20% compliance, far below standard, that information forms the basis for an improvement program.  It is not information that can be seized by a zealous investigator if a safety infraction brings a Ministry official on site.  By contrast, a safety report commissioned by the employer, sitting in the general safety file, may be taken.  It may be used as evidence against the employer.  

The consultant cannot offer document protection, only the lawyer can, if he has secured the document for the purpose of giving legal advice.  

The employer’s information can also be protected from seizure and scrutiny if the information is created in contemplation of litigation.

All employers hope to avoid litigation, but if it happens, anything the solicitor collects for the primary purpose of informing him/her and contributing to the legal defence is privileged.  In our system, in order to ensure fairness to the litigation party, expert reports, fact finding activities, interview notes, research papers: all are protected from release to the other side unless the lawyer and client decide to do so.  If the dominant reason for an activity is litigation based, the lawyer can protect whatever is generated. This means that the employer who has suffered a workplace accident, and who chooses to retain a lawyer for advice or in anticipation of litigation, may retain his/her own expert to examine the circumstances, interview the witnesses, take apart the equipment and review the background to give an opinion respecting liability.  No matter how bad the result, it remains a privileged opinion.  It informs the defence and contributes to litigation strategy.  It is all protected.  

So, the law of privilege surrounding the retention of lawyers, ensures clients can receive confidential legal advice no matter their story.  Privilege will also protect all the information collected to defend the employer who has been charged with violating the law.  In these circumstances, having your own lawyer is a good thing.