Most readers will probably know someone who has been excused from jury service or who has had their jury service postponed. The categories of persons who used to have the right to be excused from jury service was fairly broad. The ease with which people could side-step jury service led to wide-spread criticism that juries did not represent a true cross-section of society, with busy professionals often not serving as a juror. According to the Criminal Justice System website 450,000 people are randomly selected every year for jury service. Statistics suggested that less than half of those selected actually ended up serving on a jury.

However, changes introduced by the Criminal Justice Act 2003 (which came into force in April 2004) has widened the pool of persons who can be called to serve as a juror so that it now extends to people who were not previously included in the pool, such as members of the legal profession, those aged 65-70, members of the medical profession and police officers.

An issue which may be of more relevance for hrlaw subscribers is that it has now become more difficult for people to avoid doing jury service due to professional commitments. The Government changed the law in order to attempt to prevent the so-called “middle class opt-out” whereby many professionals managed to side-step their jury service by applying for excusal or postponement on the grounds that they could not be released from their jobs, because of holidays or other commitments. It was generally acknowledged to be relatively easy to avoid doing jury service. The new rules will now make it harder for people such as City bankers, traders, lawyers, insurance brokers and even HR professionals to avoid serving on juries in the future.

Before the change in the rules you would have to serve on a jury if summoned unless you were disqualified, had the right to be excused or had a valid reason for discretionary excusal. The categories of ineligibility and excusal as of right have been abolished under the new legislation. There are now only very limited circumstances in which a person will be disqualified from jury service (broadly if they are over 69 or under 18, have certain types of criminal convictions or mental health problems). In all other circumstances, people will be expected to serve as a juror when asked to do so. If there are grounds for deferral (for example because of health reasons, pre-booked holiday or death or illness of a close relative), the person who has been summoned must apply to the Jury Central Summoning Bureau and ask to be deferred to a later date or to be excused from jury service altogether, giving full reasons for their inability to attend when requested. In the case of a deferral, the person must state what other days in the next 12 months he/she would not be unable to attend, and it is therefore likely that the jury service would be re-arranged in the next 12 months. Excusal (i.e. a release from the obligation to serve as a juror) only applies if the person cannot serve as a juror during the next 12 months and is only considered in “exceptional circumstances”.

Employers may well therefore see an increase in the number of their employees who are summoned to serve as a juror, and who are actually required to attend jury service when called, in some circumstances even if arguments have been put forward for postponement. If the Central Summoning Bureau is not convinced by the reasons put forward for postponement or excusal, it will not be granted (although the Bureau does state that every effort will be made to ensure that jury service commences on a convenient date). Employers will therefore need to ensure that they know what their policy is when an employee requests time off work to serve as a juror.

Employees do not have a statutory right to time off to serve as a juror when they are summoned to do so. However, employers who obstruct an employee from attending as a juror without good reason risk a fine or potentially even imprisonment for being in contempt of court. Jury service will usually last two weeks, but in some cases a juror may be required to sit for longer than two weeks, when the case cannot be completed within that timeframe. Employees do not have a statutory right to be paid by their employers for time off for jury service, but a contractual right may exist depending upon the wording of their contracts of employment or their Employee Handbook.

Courts can pay for loss of earnings, travel costs and a subsistence rate. Loss of earnings will be paid up to a maximum of £52.63 per day for the first ten days and a maximum of £105.28 for each subsequent day. Public transport costs are also paid. No payment is made to third parties such as employers. Many employers will therefore require employees to claim their loss of earnings and expenses from the Courts first, and will then allow the employee to receive the difference between this and their usual pay.

Employers should also consider what mechanisms need to be put into place to provide cover where an employee is required to serve as a juror to ensure that there is minimum disruption to the workplace. One suggestion would be to treat the absence as being effectively the same as holiday leave, and to ensure that employees comply with whatever the Company’s requirements are for ensuring a smooth handover of matters when employees go on holiday.

Employers should also note that for the first time new protections have been provided for employees who are dismissed or who suffer a detriment because they are summoned or have been away from work on jury service. This is included in the Employment Relations Act 2004. Detrimental treatment does not include a failure to pay remuneration, unless the employee’s contract of employment entitles him to be paid during the absence. It would be an unfair dismissal if an employee is dismissed because he has been summoned for jury service or has been absent on jury service. Importantly this does not apply if the employer can show that his business was likely to suffer “substantial injury” if the employee was absent, that he made this known to the employee, and the employee nevertheless unreasonably refused or failed to apply to the relevant officer to be excused from jury service or to have his service deferred.

Therefore, whilst it will still be open to employers to agree with the employee that the employee should try to get his or her jury service postponed, under the new legislation it is likely to be increasingly difficult for such applications to be successful. Employers also need to be cautious not to dismiss or subject employees to any detriment because of an absence related to serving as a juror.

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