Giving evidence is not ‘work’ for furloughed employee

Riach: Welcome guidance

Giving evidence at court is not ‘work’ for an employee and so being on furlough is not a reason for their employer to seek to vacate a hearing, the designated civil judge in Nottingham has ruled.

His Honour Judge Godsmark QC said employees in such situations were not providing services that may make money for a party’s solicitors in breach of the government guidelines.

Fottles v Bourne Leisure concerned a member of the public who suffered an injury following a fall during a circus activities class, with liability in dispute.

The claim was allocated to the fast-track and listed for trial on 8 June, with the defendant relying on evidence from three employees who were now on furlough.

According to Hayley Riach, the partner at Keoghs acting for the defendant, both felt unable to make contact with the witnesses in the build-up to trial to secure their attendance. As a result, the defendant applied to vacate the trial.

The guidelines state that employers cannot ask a furloughed employee to do anything that makes money for, or provides services to, “your organisation or any organisation linked or associated with your organisation”.

Ms Riach said their understanding was that an employee providing a witness statement, attending trial or dealing with other matters associated to a claim where they had only become a witness due to their employment, would be classed as providing a service. By extension, this means they could not be contacted whilst on furlough.

A bulletin on the case produced by the local civil court users committee explained that this was because giving evidence would make money for and provide services to Keoghs, as an organisation “linked or associated” with the defendant, and the firm would charge for its time in dealing with the witness.

Ms Riach said the claimant’s solicitors, having previously agreed to vacate, “backtracked and argued that the trial should proceed”.

Whilst HHJ Godsmark allowed the application to vacate, he indicated that he would not have allowed the adjournment on the grounds that the defendant’s witnesses were furloughed, and refused permission to appeal the point.

“I ruled that attending a court to give evidence for the employer is not ‘work’ and certainly not work within the meaning of the furlough scheme.

“Further, being contacted by an employer’s solicitor to arrange attendance at court is not asking a furloughed employee to do any work which makes money or provides services in breach of the scheme.

“Participating as a witness (for employer or anyone else) in the justice system is not a breach of the terms of the furlough scheme. I do not consider that an appeal has a real prospect of success and there is no other compelling reason why it should be heard.”

Ms Riach commented: “We have all found ourselves in unprecedented times over the last few months and no more so than in personal injury claims. We have proceeded with caution when it has come to making contact with witnesses who have been furloughed, not least because we would not want to prejudice an individual’s entitlement to the furlough scheme.

“The judgment is therefore welcome guidance given the furlough scheme is in place until October 2020.

“However, with this situation likely to arise more regularly, the guidance probably doesn’t go far enough given it is limited to attendance at trial, rather than engaging a witness at the outset.”

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