How to approach Solicitors Qualifying Exam fails: guide for employers

Employers should have clear policies in place around how to respond if all does not go to plan during the SQE process.

For example, if a candidate does not successfully complete all SQE assessments at the first attempt and needs to resit some or all of those assessments.

Appropriate policies will put both parties in a clearly defined and robust position, which should minimise misunderstandings under stressful circumstances.

Candidates and employers should understand what actions will be taken under each circumstance and situation.

Although this guide primarily considers what to do if a candidate fails one or more of the SQE assessments, there may be other circumstances where similar considerations could be applied. For example:

• if a candidate is subject to extenuating circumstances, or illness, and is unable to participate in the course they are undertaking or needs to defer an assessment, possibly at short notice
• where administrative errors on the part of the examining body have led to unexpected results that may be corrected in favour of the candidate

Considerations

The SQE seeks to assess the knowledge, skills and attributes of a solicitor on day one of qualification.

This higher standard the SQE is set at, compared to the Legal Practice Course (LPC), and the wide range of law and practice being assessed makes the SQE a more difficult standard to meet than the LPC.

The SQE assessments are also more challenging as a series of assessments which must be taken in quick succession and in formats, such as the multiple-choice SQE1.

These are significantly different in nature to anything candidates have undertaken in the course of their previous education.

The SQE is still relatively new. Processes put in place by firms need to remain flexible to accommodate any issues that might arise, whether with the candidate, the assessment provider Kaplan or part of the SQE assessment sitting.

Evidence of SQE pass rates and marks demonstrates that expecting every candidate to pass each assessment first time is unrealistic. Resits are therefore likely to be required in some cases.

Whilst LPC resits could be accommodated within the length of the LPC course, the more rigid SQE assessment timetable, with only two sittings of SQE1 per year, means more flexibility is needed to give candidates the same opportunities to pass on resit.

The decision of some firms to require both SQE1 and 2 assessments to be passed before commencing the qualifying work experience period is an additional (and potentially discriminatory) barrier to enabling successful completion of the course.

SQE v LPC

The SQE is set at a day one solicitor standard, not a day one trainee standard, as the LPC was.

Candidates taking the assessment before their qualifying work experience (QWE) are therefore being assessed at a level two years ahead of where they currently are.

The SQE has a much lower pass rate (around 50% for SQE1) than the LPC and particularly the ‘City LPC’ pass rate (over 90%).

With the LPC, course providers set and mark their own assessments.

By contrast, the SQE is a third-party assessment, set and maintained by Kaplan, which is contracted by the SRA, meaning SQE course providers have no connection to the assessment provider.

The assessments are challenging to sit, with centralised centres meaning unfamiliar environments sometimes in inconvenient locations.

The assessments are long, consisting of (for example) five-hour papers for SQE1, with a small break in the middle. This means SQE candidates are reporting high levels of stress relating to the assessments.

With the LPC, a student received individualised feedback on assessments that they could share with employers. With the SQE, far less detail is available to candidates to help them understand areas of weakness.

Factors to consider when deciding what policy to put in place

• How will your firm or organisation receive results? Only the candidate receives their results, not current or would-be employers.
• Will your firm allow a deferral of the expected start date of qualifying work experience (QWE)?
• Will your firm require a candidate to pass before embarking on QWE or allow resits during the qualifying period?
• How will your firm support the welfare of the candidate while they are awaiting their resit and results?
• What can the firm do to support a candidate during the period of deferral? If your firm has an ongoing relationship with the candidate’s law school or SQE provider, it may be appropriate to discuss candidate support with them to take a joined-up approach.
• Consider other paid work, such as paralegal or administrative work.
• Should the firm pay for resits or make financial support available to candidates that need it?

Ahead of results being published

The date results are issued should be noted by employing firms and candidates should be asked to contact a named individual to notify them of their results.

This named individual must be available and prepared to deal with candidates, as set out below.

What to do if a candidate fails SQE1

Initial reactions

Managing the relationship with the candidate in a positive, empathetic and respectful manner is paramount.

A firm should decide whether it is appropriate to:

• have a conversation on results day about next steps, or
• schedule a conversation with appropriate senior staff responsible for SQE candidates at the next available opportunity

It may be appropriate to direct the candidate to any mental health or other support measures available. Firms should have these resources ready to be distributed.

The firm should seek to understand if the candidate is appealing their result (or issues in relation to reasonable adjustments).

These processes may result in a change of result for the candidate. Firms should consider allowing sufficient time for the processes to complete before any decision is made.

The firm should seek to understand if there were any extenuating circumstances around the individual or assessment more generally that may have had an impact.

These factors should be considered in any decisions about next steps, including the status of an offer of employment and the candidate’s potential for future success.

Once it is confirmed that the individual has failed and any appeals processes have been exhausted, the firm should apply its policy in this area.

When drafting such a policy, firms may wish to consider the following options:

Short deferral

A candidate with a September start date who fails SQE1 in January cannot resit until July. This may mean their results come too late for the firm to confirm their start date in September.

Candidates cannot sit SQE2 until October, with results 14 to 18 weeks later (possibly not until the end of February).

Where firms require candidates to pass SQE1 and SQE2 before beginning QWE, they would miss the common September start date, so a delayed start date in March would need to be considered and planned for if feasible.

Firms should consider their talent pipelines as a whole.

If a firm recruits its candidates two or three years ahead, then allowing a short resit deferral might prevent any future resource gaps.

Long deferral

Using the above example, if the firm is unable to accommodate a March start date, the candidate could be deferred to the following September intake.

Whilst this puts less pressure on the candidate or the firm’s existing recruitment approach, the issue of how the firm engages with the candidate over this extended period and any potential paid role they may be given requires some thought.

Cancellation of offer or contract of employment

There are circumstances in which it may be appropriate to cancel the offer or contract of employment originally agreed to.

This process should be managed sensitively and with integrity and respect for the candidate, providing opportunity for the candidate to discuss the matter with appropriate members of the firm.

The employer should also be able to provide appropriate resources that candidates can be referred to, around mental health and other support including sources of career and training advice.

The decision to terminate or cancel the offer could be taken for many reasons, including:

• if a candidate has failed by a large margin on one or both papers, with no extenuating circumstances or a realistic prospect of passing
• if the candidate has failed and not engaged appropriately with the preparation course they undertook, with the appeals process or re-sits process, or with the firm around potential next steps

Factors to consider when deciding whether a short or long deferral is appropriate

• Is the mark a marginal or significant fail? Is it one paper or assessment or more?
• Are there any extenuating circumstances, either in the candidate’s life, or around the assessment sitting? For example, there have been issues highlighted with some sittings at some centres with IT not working or power outages, which are unsettling for candidates.
• Did the candidate apply for and receive appropriate reasonable adjustments? This may be something to consider and seek to put in place for any planned retakes where appropriate.
• Will the candidate have to wait longer to resit at a centre that has the appropriate assistive technology or other reasonable adjustment? Not all are available at all centres.
• Has the candidate engaged appropriately with the SQE course they attended? This information may not be available to all firms but could be a factor in some cases.
• Does the candidate have visa requirements that may affect their ability to manage resits? The firm may consider that it has a moral duty to the candidate to help manage this.

What to do if a candidate fails SQE2

Much of the above guidance would apply in the same way it would apply to a failure at SQE1.

However, given the candidate is further along the qualification process, has passed SQE1 and may have already undertaken employment in the form of QWE at an employer, there are additional factors to consider.

The candidate is likely to be more established in the employer’s operation, particularly if they have completed their QWE, and the employer can make an informed decision based on their ongoing performance and suitability to be a solicitor.

SQE2 sittings are held more frequently, which may lessen any effects of a deferral and the ability of an employer to accommodate it while keeping the candidate in employment or an offer of employment open.

Case study: candidate failed SQE1

Before the SQE assessment results were published, the firm agreed a process with sponsored candidates and the education provider to make sure everyone was aware of the plan should a candidate fail.

One candidate failed a SQE1 paper by a few marks. As agreed, the candidate contacted the named individual at the employing firm to inform them that they had failed.

The candidate then arranged a time to speak about next steps with appropriate senior staff members, as it is important that all discussions and decisions are taken by senior leadership staff with responsibility for trainees, who fully understand the issues.

The firm took into account that this is a new regime still under development and review, with an unfamiliar and stressful, high-stakes assessment.

The firm had invested a lot in the individual up to this stage, as had the candidate with the firm, and the firm wanted to recognise this.

The firm looked at the situation holistically. This included:

• consideration of the candidate’s circumstances
• feedback on the candidate’s performance on the course provided by the education provider
• firm knowledge of the candidate to date

The candidate had not previously failed an exam in their education journey and demonstrated their commitment to the journey to become a lawyer.

Outcome

The firm agreed to defer the start date for the candidate’s QWE to the next available intake.

The firm also agreed to pay for the candidate to resit the required assessment and arranged for the course provider to provide SQE1 revision support.