Employees may occasionally have to attend court, whether as parties to a dispute, as an accused in criminal proceedings, or witness. In more serious situations, an employee may even be remanded in custody or sentenced to imprisonment.
In such situations, the employee’s attendance at court is usually mandatory. Must the employee be paid their salary for the days spent in detention or attending court?
The Legal Position
Section 23 of the Employment Act 1995 (EA) provides that:
Wages shall not become payable to or recoverable by any employee from his employer for or on account of the term of any sentence of imprisonment undergone by him or for any period spent by him in custody or for or on account of any period spent by him in going to or returning from prison or other place of custody or for or on account of any period spent by him in going to, attending before or returning from a court otherwise than as a witness on his employer’s behalf.
In summary, employees are not entitled to wages where their absence from work is due to imprisonment, custody, or court attendance for personal matters.
The provision covers several categories of absence connected to legal proceedings or processes. In each of these instances, wages are not payable and are not recoverable from the employer.
- Sentence of imprisonment – Where an employee is convicted and serves a custodial sentence.
- Time spent in custody – This includes police remand or pre-trial detention. Wages are not payable even if the employee has not been convicted. An eventual acquittal does not create a retrospective entitlement to wages.
- Travel to and from custody – This includes the travel to and from prison or detention facilities, or transit periods connected with detention.
- Court attendance for personal matters – This includes time spent in court as a party to the proceedings or as a witness in a private matter. Wages are not payable even where attendance is mandatory or compelled by order or subpoena.
Key Exception: Attending Court as a Witness for their Employer
The sole statutory exception arises where an employee attends court as a witness on behalf of the employer. In such circumstances, the employee is entitled to be paid their salary as usual, notwithstanding their absence from work. This applies where the employee gives evidence in court proceedings for the employer, whether at the employer’s request or pursuant to a subpoena issued at the employer’s instance.
The rationale is that such attendance constitutes compliance with a lawful instruction of the employer. It follows that the employee’s absence for this purpose cannot be treated as unpaid leave or deducted from their annual leave entitlement.
Key Takeaways
Although Section 23 of the EA removes the obligation to pay wages under certain circumstances, employers should still manage the employee’s absence carefully, remembering operational needs, contractual obligations, and the broader employment relationship. This typically involves these considerations:
- Employees can opt to apply for the appropriate leave such as annual leave or other approved leave categories, if they wish to receive wages for the period of absence. Care should be taken not to compel employees to utilise annual leave, where they prefer unpaid leave.
- Where imprisonment or detention is prolonged, additional employment considerations may arise, including permanent or temporary inability to perform contractual duties or operational disruption. Employers should assess the situation case by case, considering the expected duration of absence, the nature of the employee’s role, and applicable contractual terms and company policies.
- Employers may, as a matter of goodwill, grant paid leave in appropriate circumstances. Such arrangements are discretionary and should be communicated as exceptional, so as not to create an expectation or precedent of paid leave in future cases.
Section 23 of the EA only addresses only wage entitlement. Employers should still require proper notification and supporting documentation, decide how the absence will be recorded, consider operational impact and staffing needs, and exercise discretion carefully where goodwill is extended.
A clear internal framework for handling court attendance and detention will help employers respond promptly, minimise disputes, and maintain fairness across the workforce.
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This article was written by Ilyssa Jace (Associate) from Donovan & Ho’s employment law practice.
Donovan & Ho is a law firm in Malaysia, and our employment practice group has built a reputation for providing strategic employment advice to local and global organisations. Our team of employment lawyers provide advice on employment law and industrial relations including review of employment contracts, policies and handbooks, advising on workforce reductions, and managing dismissals of employees for poor performance or misconduct. We also represent clients in unfair dismissal claims and employment-related litigation.
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