If an employee is required to give evidence as a witness in any type of Court or tribunal, whether as a prosecution witness, defence witness or even giving expert evidence, it is important to understand how that time off work should be accounted for.
Legal obligations as an employer
Where an employee has been summoned or ordered by the courts to attend as a witness, you must grant them the relevant time off work.
Attending court to provide witness evidence could be a distressing time, and ensuring that employees feel supported in such “moments that matter” can significantly shape good employee relations and employee experience. Equally, mishandling the situation could damage employee engagement, increase sick leave and even lead to negative coverage on social media.
Criminal and civil court proceedings
There are different ways someone can be asked to give evidence in Court.
In criminal proceedings, 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.
Courts and tribunals may issue a witness summons 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 in accordance with the Court Act 1981.
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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How should you manage annual leave requests for court attendance?
If your employee has been asked to give court evidence as a potential witness voluntarily, and wishes to do so, you can ask them to take this time as annual leave from their holiday entitlement, authorised unpaid absence or in their personal time. However, if they have received a Court order or Summons, they must have the time off or you are at risk of being in breach of the Contempt of Court Act yourself.
Should I give my employee paid time off when they attend court?
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 improves 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.
If the employee’s attendance at court is to give evidence on the employer’s behalf, it would be in your interests to grant paid time off.
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.
The presence of an employee handbook that includes the company position in relation to time off and pay will assist you to ensure that requests are handled fairly and consistently.
Be clear with the employee what the law requires you to do in terms of time and pay and what your policy or contract of employment states if different and communicate this in writing. We have a letter in our Online HR Toolkit which you can use to communicate your decision.
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