While losing your employee for several days or weeks while they are on jury duty is always inconvenient, it is important that businesses are aware of what they can and can’t do while the employee is away.

Jury duty is rewarded by a payment from the courts, but it is often a minimal amount. In some states, employers must continue to pay employees on jury duty their full wages, while in others they are only obliged to pay make-up pay, which is the difference between the employee’s normal wages and the court payment. This can be quite costly to employers, especially small businesses, and many have struggled to retain employees who have been away on jury service for significant periods of time.

Can I stop my employee from attending jury duty?

As an employer, you must release any employee called for jury service. You must not stop the employee from attending, including by the use of 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 be able to communicate a request to the court that the employee be excused, 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), such as when the employee first receives the letter of summons. Making such a request does not guarantee that the employee will be excused from the jury service.

An employee may themselves request to be excused on personal grounds, such as on the basis of family responsibilities, medical conditions, study commitments, transport difficulties or conflict of interest.

Can I terminate my employee while they are on jury duty?

Most Australian States and Territories have laws which impose significant penalties on employers who either terminate an employee, or otherwise detrimentally change an employee’s employment, because they are performing jury service. Threatening such things is often considered just as unlawful.

For example, in NSW, this is a criminal offence bearing a maximum penalty of $22,000 for a company, and $5,500 or 12 months imprisonment for an individual.

While these prohibitions relate to termination of employment because of jury service, it is also not recommended for employers to terminate an employee while they are on jury duty but for a different reason. While it may be theoretically lawful, the risk of being found in contravention of the laws if you are unable to successfully prove your reasons is significant. Additionally, you are inviting public scrutiny and potential reputation damage, not to mention the cost of defending your case, which will likely be several times greater than the cost of retaining your employee.

What else do I need to know?

Jury duty is governed at a state and territory based level, so unfortunately the rules differ across Australia. If any employer has questions about their specific situation, we advise that you seek professional advice, such as from HR Assured, before proceeding to take any action.

For more information on jury service and what this means for you, clients should contact the HR Assured team. If you’d like more information about the benefits of becoming an HR Assured client contact us today for an informal chat.