Furloughed witness

Keoghs have reported on the case of Fottles v Bourne Leisure in which the Court provided guidance on the issue of furloughed employees attending at court.

Keoghs recently represented the defendant in an application to vacate a trial due to COVID-19. The judgment gave some timely guidance on whether giving evidence at court should be regarded as “work” for an employee.

No option but to vacate

The case 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 2020, with the defendant relying on evidence from three witnesses who, as employees of the defendant, had been placed on furlough. Unfortunately, as a result of the furlough scheme, both the defendant and Keoghs felt unable to make contact with the witnesses in the build up to trial to secure their attendance. As a result an application to vacate the trial was made.

Impact of the furlough scheme

At the hearing, HHJ Godsmark QC was directed to the Government guidelines which state:

“You cannot ask your employee to do any work that:

  • Makes money for your organisation or any organisation linked or associated with your organisation;

  • Provide services for your organisation or any organisation linked or associated with your organisation”.

The defendant’s 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 as an employee. By extension, this means they could not be contacted whilst on furlough. As such, the three witnesses in this case could not be contacted to seek their attendance at court and the defendant would be significantly prejudiced if the trial proceeded.

The claimant’s solicitors, having previously agreed to vacate, backtracked and argued that the trial should proceed.

Giving evidence at court is not “work”

Whilst HHJ Godsmark QC 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.  In fact, he 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.”

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