For August 2024, we have asked the employment team at Tughans LLP to provide practical answers to unusual, sensitive or complex work-related queries. We call this feature “How do I handle it?”

The articles are aimed at HR professionals and other managers who may need to deal, from time to time, with the less commonplace disputes at work; issues that may, if handled incorrectly, lead to claims for discrimination, constructive dismissal or some other serious difficulty.

This month’s problem concerns:

“An employee has been called for jury service and is asking if they can work flexibly to cover their work, instead of claiming loss of earnings from the court. How do I handle it?”   

Jury service is a civic duty mandated by the Juries (Northern Ireland) Order 1996. If summoned for jury service, individuals are legally required to attend court on their notified days, unless they are excused from service by the court or have a valid reason for their service to be deferred.

As an employer, it is important to fully understand your obligations towards summoned employees. As a basic rule, you must provide employees with time off to complete jury service. Your employee will be fined for each day they fail to attend, and you could be prosecuted for contempt of court if you prevent them from attending.

Under the Employment Rights (Northern Ireland) Order 1996, employees are also protected against detrimental treatment on the grounds that they have been summoned or have been absent from work because of their attendance once summoned. Dismissals for these reasons are also automatically unfair.

There is no statutory requirement for this time off to be paid, but you should check the contract of employment, as well as your internal policies, to clarify whether the employee is entitled to paid time off for jury service. If they are not, then giving unpaid time off will not be detrimental treatment.

The employee will be eligible for juror allowance, which includes travelling and subsistence and financial loss resulting from their attendance. These financial losses can include loss of earnings, but the total claimable is capped. It increases based on the amount of time spent on jury service. During the first ten days, an employee can claim a maximum of £64.96, which increase to £129.91 from the eleventh day onwards.

Depending on whether they are selected and the nature of the trial, the employee may be on jury service for a considerable period of time, during which they may not be available during working hours. It is conceivable that it could significantly impact their financial position. This may be the rationale behind their request to work flexibly. Some employers choose to alleviate these difficulties by “topping up” the allowance while the employee is on jury service.

I assume that the employee has asked to work remotely and/or for different hours during their period of jury service. In these circumstances, it is not likely that the employee has made a statutory flexible working request, but you should make sure this is the case.

Statutory requests usually involve part-time working, working from home, flexitime (choosing the start and finish times), or compressed or staggered hours. However, they will result in a permanent change to the employee’s terms and conditions of employment – which is not likely to be their desired outcome.

If they have made a statutory request, you should check that they understand the permanent implications and that you will need to follow the formal statutory procedure. This includes checking that they are eligible – they still need 26 weeks’ service in Northern Ireland and can only make one statutory request per 12 months.

Statutory requests must be made in writing and state that they are a statutory request, specify the flexible working pattern applied for, explain what effect the proposed change may have on the business and how this can be managed; confirm the date on which they want the change to start and confirm that no other statutory requests have been made in the last 12 months.

You can only reject a statutory request on specific business grounds including; planned structural changes, the burden of additional costs, any detrimental impact on quality, performance or ability to meet customer demands, inability to recruit additional staff or reorganise work amongst existing staff or insufficient work for the periods the employee proposes to work. When considering the request, you would need to consider both the temporary period they will spend on jury service and what is required when they return.

It is more likely the employee has made an informal request for a temporary accommodation. It would be best practice to consider this request at face value – it may be possible to agree a mutually beneficial arrangement for both you and the employee, which allows the employee to stay engaged with their work while minimising the personal financial impact of being summoned for jury service.

With an informal request, your decision will likely depend on the individual circumstances, including the employee’s seniority and importance, and whether their role can be practically performed remotely and/or outside of normal hours. You might consider how willing you are to continue paying the employee if their work cannot be monitored and supervised in the normal way. It may be more feasible to simply reallocate their work to other team members to complete during normal hours, than allow the employee to work flexibly around their jury service.

There may also be welfare implications for the employee in terms of stress or burnout if they are attending jury service during work hours and then working afterwards.

In summary, it is ultimately the employee’s prerogative to make a statutory flexible working request, but given this would result in a permanent contractual change, it does not sound like the most appropriate option for either you or them in these circumstances, and in the first instance you should consider whether the request can be dealt with informally, for the temporary jury service period.

Where possible, it would be best practice to approach the situation with flexibility and support, balancing the employee's concerns with the operational needs of the business. Open communication is key to finding a solution that works for both parties.