Employers are used to having to cope without key members of staff for maternity or paternity leave and the recent discussion ahead of the shared parental leave changes next year has helped to highlight some of the additional challenges they will face. Far fewer employers have experience of dealing with the loss of staff to long-term jury service though. It has been brought sharply into focus, however, for employers of those people chosen to be jurors for the Hillsborough inquest which is expected to last many months.
In general, jury service in the UK lasts for two weeks which most employers will find manageable. Losing a member of staff for several months for a long trial though is harder to deal with. And it isn’t just the loss of them that has to be managed but also their re-integration with the team afterwards. The individual will have spent weeks or months in a completely different environment and will, of course, be unable to talk about the case for which they were a juror either during or afterwards. What they have heard may have been stressful for them or even had a psychological impact. “The issues of confidentiality and the feeling of being in a different world, separate from the rest of the team are, crucial [when it comes to re-integration],” says Shelly Rubinstein, managing director and chartered psychologist at Impact Consulting Psychologists. “It is not a shared experience that they can talk about.”
In the case of an anticipated long trial, employers will need to look carefully at how they cover the person’s role just as they would with maternity/paternity or long-term sickness leave. The employee can request a deferral but it is not “in the gift” of the employer to decline a person to be released for jury service, says Matthew Ramsey, professional support lawyer in the employment law team of international law firm Macfarlanes. “Any request to be excused or deferred must come from the employee,” he says. “Employers are specifically excluded from any right to assist formally in making such an application.”
The jury summoning officers will decide whether someone can be excused or deferred and Ramsey explains that deferral is the default position. He adds that the guidance on this subject makes a specific note that a person can be deferred for valid business reasons but this will be scrutinised closely. “It goes on to say that small businesses are an example of where hardship might be more easily demonstrated although they will take each case on its merits,” he adds.
While deferral might seem like a good option for anyone with pressing business commitments, bear in mind that a person can only be deferred once and there is no guarantee the timing would be any better next time round. “They may want to defer because there is, for example, training or something pre-booked but there might be something around the corner a person doesn't know about yet,” says Ramsey. “So the individual has to weigh up whether it isn’t better just to get it done when you are first called.”
The better the employer’s preparation for when the person goes on jury service, the better it will be for all sides and this will also help when they return. Managers should, therefore, fully discuss what will happen to the person’s role when they are away with the individual and those colleagues impacted by it. Employers need to be alert to a number of potential issues. Rubinstein explains that some colleagues could feel resentful about covering the person’s work so managers need to convey the value of doing jury duty. Meanwhile, the individual should show their gratitude to colleagues providing cover and allowing them to do their public service. Rubinstein adds that if either side feels unfairly treated during and after the period of jury service, the psychological contract can be damaged. “Research tells us that the biggest thing that impacts the psychological contract are feelings of equity and fairness,” she says.
When a person is on maternity leave, many employers put in place formal or informal ‘Keeping in Touch’ or KIT days which helps the employee remain engaged with what is happening back in the workplace. There is no reason why an employer cannot do this with the individual who is on jury service. Similarly, Ramsey points out that the employee could work in the evening. “As long as they don’t talk about the case or do anything that puts them at risk of being influenced in reaching a verdict by material and information from outside the courtroom.”
As to whether the employee is willing to work in the evening or remain in regular contact with their organisation may well depend on whether the employer is going to maintain their salary for the duration of the trial. Employers have no obligation to do so unless they have contractually agreed to. Jurors claim for loss of income and expenses but as Ramsey points out, the amount that can be claimed from the court is relatively low for some employees, especially those in professional positions: “So if someone is going to be working in the evening or you want to keep in touch with them, making some payment to incentivise them to do so would be intelligent.”
Part of the Employment Rights Act protects individuals from being detrimentally treated but that does not deal with pay unless there is a contractual right to be paid, explains Ramsey. “So if a person is sacked because they are called up or adversely treated in some other way, such as not being promoted, that’s actionable but pay isn’t covered unless it contractually applies. So pay could certainly be an issue on a long case,” he says.
On the employee’s return, managers should conduct return-to-work interviews and carry out other best practice just as they would anyone returning from any period of lengthy leave. They should bear in mind though that it may feel strange if not disorienting for the individual being back in their normal life. “It’s a little like being in the Big Brother House when you are clossetted with a group of people,” explains Rubinstein. It may also be the case that the experience has proved more exciting and stimulating than their normal job. “It may have given them the chance to be somebody different. They may have a heightened consciousness to the contribution they have been making which may have been more than the contribution they make in their job. They will have been reacting to evidence they heard and to other people and even if they haven’t realised it, they will have learned things they didn’t know before. All of this may have an effect on their behaviour when they come back to the workforce,” she adds.
Managers must help individuals to re-connect with colleagues and also clients if they are customer-facing. “They (the individual and colleagues) are likely to be in different emotional places,” she explains. “The person on the jury hasn’t been involved in what’s happened at work so it is important for them to listen to colleagues about what has happened. It’s a case of everyone walking in the other person’s shoes.”