A client was recently placed in a difficult position when an employee was called up for jury service during a peak period for the business. Employee absences to perform such duties can be deeply disruptive to an organisation and can leave both the employer and employee equally adrift as to the situation relating to pay and the law.
What does the law say?
The law protects employees from suffering a detriment or being dismissed as a result of their public duty. Employers must therefore allow employees time off for jury service.
The protections that an employee enjoys are not unqualified. The protection from detriment and unfair dismissal does not apply at all to other workers. Even for employees, the automatic protection can be lost if an employer can show the following:
• That the employee’s absence on jury service would cause substantial injury to the employer’s business in the circumstances;
• The employee has been made aware of the employer’s concerns;
• The employee refuses or fails to apply to the court to be excused or for the jury service to be deferred, depending on the circumstances; and
• The employee’s refusal or failure to apply to the court was not reasonable.
Should an employee’s request to the court for a deferral or a refusal be turned down, there is very little an employer can do.
Notice to the employer
Unhelpfully, the legislation does not prescribe how an employee should inform an employer of jury service and the right to attend. Common sense and good practice would dictate that an employee should give as much notice as possible to the employer to allow the impact of the employee’s absence on the business to be assessed. If an employee does not inform an employer about a call to attend jury service until the last minute, the employer could characterise this as misconduct.
Entitlement to pay
What makes jury service particularly disruptive to employers is that the length of time an employee will be required to sit on a jury can vary. Therefore, an employer will not immediately know how long an employee will be absent. Employers are not required to pay an employee who is on jury service. However, the employee can apply to the court for travel and food expenses, along with making a claim for loss of earnings, albeit that loss of earnings is subject to a cap which is well below the average wage. However, it is fairly common practice for an employer to continue paying an employee in line with company policy, but this is not a legal obligation. It would only become a legal matter if an employee’s contract provided that they should be remunerated during jury service and an employer failed to do so. In that case the employer would be in breach of contract and the employee would also be subject to a detriment.
If an employee believes they have suffered a detriment due to being summoned for jury service, they can make a claim in relation to that detriment or for unfair dismissal on jury service grounds to a tribunal.
A clear policy is key
Jury service by its very nature is unpredictable and will invariably involve uncertainty for both the employee and employer. It is therefore always best for an employer to have a clearly drafted policy for how jury service will be treated. The policy should also deal with voluntary public service and reserve force duties.
Any jury service policy should require employees to give as much notice as possible and provide the right for the employer to request that the employee applies to the court to defer or refuse the summons. Finally, the policy should deal with whether a proportion of the jury service should be paid and provide the employer with the discretion to extend this if necessary. A policy which voluntarily provides an employee with some remuneration whilst on jury service demonstrates a measure of good will, whilst also protecting an employer against the cost of paying an employee’s full salary during a long-running trial.
If you have any questions about jury service or any other employment law issues please Get in Touch