If an employee is required to give evidence as a witness in Court it is important to understand how that time off work should be accounted for.
There are different ways someone can be asked to give evidence in Court. In criminal trials, a witness may be served a warning letter by the Police. This means that the individual must be present in Court but may not be called to give evidence. In civil Courts, a summons may be issued which not only requires attendance but guarantees that they will be required to give evidence. In these cases, they can face a Fine for Contempt of Court if they do not attend as requested, or even be imprisoned.
The notice given to a witness, in either circumstance, can vary from a couple of weeks to only a few days. It is also possible that the date is postponed or cancelled any time leading up to the planned date, and even on the day itself.
As an employer, it means that your employee may not have the ability to give much notice and that the agreed arrangement may be changed.
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As an employer, how do you manage this?
- Time off – if your employee has been asked to attend a Court hearing as a potential witness voluntarily, and wishes to do so, you can ask them to take this time as annual leave. However, if they have received a Court order or Summons, they have to have the time off or you are at risk of being in Contempt of Court yourself.
- Pay – there is no right to be paid for time off to give witness evidence under any circumstances. This means that whilst you may have to give them time off, you can legally refuse to pay them.
However, you may want to consider that it is actually part of our public duty to give evidence as a witness and paying for such time builds trust and good employee relations.
It may be possible for an employee to claim loss of earnings from the Court. In criminal cases, this is a fairly low payment calculated on hours of attendance. In civil Courts and tribunals, the Court has the power to order the losing party to reimburse the successful party for those costs but this is rarely applied to witnesses.
Proof of attendance
If an employee requests time off for a Court witness appearance, ask them to produce the Summons, Order or letter detailing the need of their presence.
Be clear with the employee what the law requires you to do in terms of time and pay and what your policy states if different. We have a letter in our Online HR Toolkit explaining the legal position which you can use.
Be aware that if the time off is needed due to a tribunal and they are giving evidence on your behalf, it would be in your interests to grant paid time off.
If you have concerns about the legal position, or how to handle a request, please contact us to discuss how we can provide the expert HR advice and support to help you achieve your organisation’s goals. We’re a friendly bunch and would love to help make a difference to your business so contact us.