25th February 2020
Employee Reporting For Duty – But What Happens To Business?
There may be circumstances when employees have the legal right to take time off from work for public duties; every employee must be allowed time off from work for jury service and an employer must not discriminate, or may risk an employment tribunal (“ET”). A delay may be requested if the service may seriously harm the business but will require a letter to the courts from the employer explaining why. It is not mandatory to pay staff on jury service, but many businesses decide to do so at their discretion.
Employees may also seek a ‘reasonable’ amount of time work if they are involved in initiatives such as study and training, school councils, trade unions, boards of governors (and more) as set out in the Employment Rights Act 1996 Section 50. What amounts to ‘reasonable’ is based on an agreement between the employer and employee based inter alia on the duties to perform, any existing time off already taken and the overall impact on the business the absence may cause.
Such an arrangement requires open lines of communication and transparency between the parties and a well-managed situation would likely enhance employee performance through improvement of their skill set or advanced personal development. If, however, an employee feels that they are being obstructed from carrying out their public duty, they may feel compelled to make a formal complaint through an appropriate company grievance procedure, negatively impacting the business.
The employer must permit time off to carry out the duty and it is not adequate to seek to rearrange working shifts or schedules to make up the time lost. The exercise of a degree of discretion on the employer’s part was acknowledged in Borders Regional Council v Maule (1993), though it was generally observed that mutual agreement should be reached with the employee and then be comprehensively documented for any potential claim. The employer can follow a structured process; including ‘reasonable notice’ of dates of time off required, the duration of the absence, that the time off is agreed in advance (and is not sporadic) as well as any extra training or essential activities that may be necessary in the performance of the public duty.
Although it may not prove ultimately conclusive in an ET, a clear company policy for dealing with time off requests is invaluable for setting out the general approach and encouraging the employee to discuss any thoughts of taking a public duty with their employer first before making any commitments which may later lead to conflict. It was evident in Riley Williams v Argos Ltd (2002) that failing to provide a useful time-off policy to employees would be criticised and viewed unfavourably by the court.
An employer should be familiar with the categories of people who may have rights to time off from work, which categories ought to be paid in their absence, the policy/consultation process and the proper documenting of any agreements reached. The Company may even decide to widen the rights to time off using a bespoke policy pursuing professional development and support of an ambitious and motivated workforce.