UK: Jury Service - What are the Rights and Obligations of Employers?

Around 450,000 people are chosen at random by computer each year to serve on a jury. Any person on the electoral roll between the ages of 18 to 70 may be selected and, since the Criminal Justice Act 2003, this covers a much wider cross-section of society. For example, lawyers are now eligible for jury service, having been in an excluded category for hundreds of years. Those who remain disqualified include persons on bail, those who have served or been sentenced to terms of imprisonment or certain other penalties, and those with certain mental disorders.

Although individuals have a legal obligation to participate in jury service (unless they are ineligible, disqualified or excused from serving, or their jury service is deferred - see below), there is no corresponding statutory right that entitles an employee to take time off work for jury service. However, new laws introduced on 6 April 2005 under the Employment Rights Act 1996:

1. give employees the right not to be subjected to any detriment by any act or failure to act by the employer on the grounds that they have been summoned for jury service or been absent from work to attend jury service (this would not include a failure to pay the employee’s salary unless there is a contractual right to paid time off)¹;

2. make it automatically unfair to dismiss an employee for taking time off work for jury service².

Employees do not have a statutory right to be paid whilst they are on jury service, but many employers will pay for up to 2 weeks’ absence in support of the notion that their staff should perform civic duties as part of being a good citizen. As mentioned above, failure to pay an employee, in the absence of a contractual right, will not amount to a "detriment"³

Anyone can apply for excusal or for his or her jury service to be deferred. There is a right to be excused from jury service if an individual has served as a juror, or attended to serve on a jury, during the previous two years. In other circumstances, excusal is rarely granted and deferral will usually be offered instead, e.g. where there is a conflict with work commitments, holidays, the expected birth of a child etc. Deferral can, by law, be granted only once.

Jury service usually lasts for up to two weeks. However, many trials do last longer, and trial estimates are often exceeded. If the Judge knows that a trial is likely to last longer, then he or she will raise this with potential jurors at the outset and give them an opportunity to apply to be excused from serving, or for their service to be deferred.

There is an exception to the provision which makes it automatically unfair to dismiss an employee for taking time off for jury service. The protection does not apply where an employer can show⁴:

• that the circumstances were such that employee’s absence was likely to cause substantial injury to the employer’s business;

• that he brought those circumstances to the attention of the employee;

• that the employee refused or failed to apply to be excused from jury service, or for his attendance to be deferred; and

• the refusal or failure was not reasonable.

Employers will need to ensure that the anticipated absence of an employee over the period for which they have been summoned is covered and also be aware that the period of absence may be extended. They should ensure that the employee keeps in touch and provides them with regular updates on the time they are likely to be away from work.

In practice, it is often possible for employees to work over the period in question. Once Court staff are confident that a juror will not be required for a particular day, the juror will normally be released which might allow them to attend work for the remainder of the day. Alternatively, it might be possible for employees to do a certain amount of work using laptops, mobile phones, Blackberrys etc. whilst waiting around at Court.

Employers cannot claim for additional costs. However, employees may claim for loss of earnings, a subsistence allowance towards the costs of food and drink, travelling expenses and certain other types of financial loss such as additional child care costs. All allowances are subject to a statutory cap. The employer will be required to complete a Certificate of Loss of Earnings to support the employee’s claim. Details of the maximum allowances available can be found on the HM Courts Service website⁵.

Where payment for loss of earnings is capped to a specific period, say, 10 working days, some employers require employees to make a claim for lost earnings after that period and will then make a discretionary payment of additional salary, after deducting the sum recovered.