What exactly are the rules?
Did you know anyone enrolled to vote in New Zealand can be summoned to jury duty with some exceptions? Jury duty plays a central role in our justice system and all New Zealand citizens are encouraged to carry out their civic duties.
Employers must also allow employees to attend should they be called upon, and ensure their job is protected while they attend jury service. However, if an employee’s absence from work causes difficulty for an employer because of special commitments, an employer can give the employee a letter to support their application to be excused or have their service deferred.
Failing to allow an employee to attend jury service, or terminating their employment as a result of their attendance (including threatening to terminate), can result in fines of up to $10,000, in addition to the ability of an employee to bring a personal grievance.
In this blog, we explain the dos and don’ts of jury duty, and what employers need to be mindful of when an employee is called for or empaneled on a jury.
1. What happens if an employee is called for jury duty?
Employees should advise their employer of their expected period of leave as soon as practicable. As an employer, you can request evidence of the employee attending jury selection or duty in the instance that leave is requested.
Jury duty is unpaid leave in New Zealand. While a person performing jury duty is usually compensated by a payment from the courts, it is widely accepted that this payment isn’t a substitute for their wages or salary.
You may either choose to accept this position and implement this into your business, or you may choose to “top up” the money the employee gets from the courts to their normal pay so that the employee is not heavily disadvantaged. If so, you may also request sufficient evidence from the employee regarding their full attendance and the amount they received for each day. It’s important to have a clear policy in place to govern these kinds of situations.
2. Do employees have to attend jury duty?
As an employer, you must release any employee called for jury service. You must not stop the employee from attending, including using threats to their employment, wages, or working hours.
If the loss of your employee to jury service will cause significant hardship to the business, you may request that the employee be excused or have their service deferred by explaining the impact on your business if they were to serve. This will only be possible before the jurors have been selected (also known as empanelment), and therefore, should generally be done when the employee first receives the letter of summons. This is where notice of jury service by the employee in the first instance becomes vitally important. Only the employee can make this request, however, the business may assist in this process by providing supporting documentation. It should be noted that making such a request doesn’t guarantee that the employee will be excused.
An employee may also request to be excused on personal grounds, such as based on family responsibilities, medical conditions, or work commitments.
3. Termination and jury duty: can it be done?
New Zealand law currently protects employee jobs while they are on jury service and significant penalties may be imposed on employers who either terminate an employee or otherwise detrimentally change an employee’s employment because they’re performing jury service. Threatening termination is also unlawful.
Employers who do either of the above risk a personal grievance claim from the employee. Additionally, they could be convicted of an offence and charged with fines of up to $10,000.
While these prohibitions relate to termination of employment because of jury service, it’s also not recommended for employers to terminate an employee while they’re on jury duty but for a different reason. While it may be theoretically lawful, there’s a significant risk that the termination will be found to be because of the jury service unless there’s compelling evidence otherwise.
Additionally, you’re inviting public scrutiny and potential reputational damage, not to mention the cost of defending your case, which will likely be several times greater than the cost of retaining your employee. In any instance that you may need to process an employee termination, it’s generally advised that you wait until the employee has returned from their empanelment.
4. What else do employers need to know?
Jury duty can sometimes be a bit tricky and if you have questions about what you need to be aware of, we advise that you seek professional advice before taking any action.
Disclaimer This article, and any information contained on our website is necessarily brief and general in nature, and should not be substituted for professional advice. You should always seek professional advice before taking any action in relation to the matters addressed.
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