Time off to give witness evidence letter

Where an employee requests time off work so that they can give evidence as a witness in court or tribunal proceedings, you’ll need to deal with that request, which you can do using our letter.

Time off

Where an employee is being called to give evidence as a witness, this could be in a criminal or civil court, an employment tribunal or another type of tribunal. There’s no statutory right for an employee to take time off work to appear before a court or tribunal to give witness evidence. However, if the employee has been served with a witness summons (called a witness order in the employment tribunal), which compels them to attend and give evidence at the trial or hearing, it’s a criminal offence for them to fail to comply without reasonable excuse. As such, you’ll need to grant them the necessary time off work, effectively as special leave, to avoid potentially being in contempt of court yourself. Always ask to see a copy of the witness summons or order as evidence to support the employee’s request for time off. Our Time Off to Give Witness Evidence Letter states that time off work will be granted, subject to provision of a copy of the witness summons or order.

Pay for time off

You’re not obliged to pay employees for time off to give witness evidence pursuant to a witness summons or order, but you may do so if you wish. First check the employee’s employment contract and your staff handbook to ensure you’ve not contractually promised to pay. Assuming you haven’t, it’s up to you whether to pay or not, so long as you ensure you’re being fair, non-discriminatory and consistent between cases. In criminal courts in England, employees may put in a claim to the court for a loss of earnings allowance where they’re not paid. In other courts and tribunals, the party who called the employee as a witness may have agreed to compensate them for lost earnings/loss of time. Our letter therefore has three optional paragraphs on pay – one for paid time off, one for unpaid time off and one for partly paid time off. In the second and third cases, the employee will need to claim any loss of earnings allowance or compensation payment available to them, but in the third case we’ve provided that you’ll then make up the shortfall between that allowance/payment and their normal net pay.

Voluntary witness attendance

Sometimes, the employee isn’t being forced to attend court or tribunal under the terms of a witness summons or order; rather they’re giving evidence entirely voluntarily. In that case, you don’t have to grant them time off and so you could ask them to take it as paid annual leave and our letter covers that option. Alternatively, at your discretion, you could still grant the employee special leave (either paid or unpaid), and our letter also has the option of asking them to provide further information to support their time off request so that you can decide whether to exercise your discretion in their favour.