It is the Government's intention that there will be an increased reliance on reserves as part of the UK's armed forces, as published in the report last year ("Reserves in the Future Force 2020"). This means that more employers will be affected by staff being deployed and need to be familiar with their obligations in respect of reservists, as well as their rights when an employee is called upon for a period of active service.
Employers should consider whether they need a policy on reservists to assist managers when dealing with reservists. In addition, employers may want to check how many reservists they employ.
Time off for training
Reservists are likely to require time off for training (such as the annual 15 day training course) and employers have discretion whether this is paid or unpaid; some employers expect staff to use their holiday entitlement for training and others will grant unpaid leave. However, employers must ensure that their policy is applied consistently across the workforce. Employers, particularly small or medium sized businesses, may also want to give some thought in advance as to how the employee's role will be covered while he is away.
If employees are mobilised, employers should be given at least 28 days' notice but this can pass all too quickly, especially if the employee wants to take annual leave before mobilisation.
If an employer receives notice that an employee has been called up for active service, it can apply to an adjudication officer for the notice to be deferred or revoked if the absence would cause serious harm to the business, which could not be prevented by the grant of financial assistance. Employers only have seven days in which to apply so need to move quickly. The employer has the right to appeal against the decision.
Employers should consider how they intend to keep in touch with the employee during the mobilisation period. As with employees on maternity or long term sick leave, it is important that "out of sight" is not "out of mind". Employees on active military duty should be kept up to date on important developments in the workplace.
Whilst the employee is away there is no requirement to pay salary or employer contributions to a company pension scheme, as the Ministry of Defence will cover these. In addition employers are able to seek assistance with the cost of finding a temporary replacement for the deployed employee, including the cost of advertising and recruitment.
Time away for mobilisation does not break continuity of employment but it does not count towards reckonable service (eg when calculating redundancy entitlement). Reservists do not accrue annual leave whilst away. However, any period of mobilisation will include a period of post operation leave before the employee is required to return to work.
Reservists have protection from unfair dismissal and it is a criminal offence for an employer to terminate a reservist’s job without their consent solely or mainly because he has a liability to be mobilised.
Returning to work
Employers have an obligation to reinstate reservists in the same role and on equally favourable terms and conditions as before their mobilisation. They are entitled to be re-employed for a minimum of 13, 26 or 52 weeks, depending on their length of employment prior to mobilisation.
When the employee returns to work, the employer should consider whether a formal return to work process is necessary to integrate the employee back into the workplace. If any refresher training is required, this should be scheduled at the earliest convenient time.
The workplace may have changed whilst the employee was away. In these circumstances, where it is not possible to return the employee to his previous role, he should be returned to the most favourable alternative.
If the employee is not satisfied upon returning to work (either with the alternative proposed or a failure to re-employ) he is able to complain to a Reinstatement Committee. This is a tribunal, which is similar to the employment tribunal. It has the power to order an employer to re-employ the employee or to award financial compensation. There are strict time limits for employees to submit an application to the Reinstatement Committee: they must make an application within 13 weeks from the date they first requested to return to work or, if the employee has already been reinstated, within 52 weeks after the date of reinstatement if the complaint is about the alternative role provided.
If the Reinstatement Committee decides that an employer has failed in its obligations, it can order the employer to make a job available, including specifying the type of work and the terms and conditions. The Reinstatement Committee can also order compensation for loss of wages suffered or likely to be suffered by the employee.
Failure to comply with an order made by the Reinstatement Committee can result in an employer being liable to summary conviction (a criminal sanction) and a fine of up to £1,000. There is legislation currently pending to increase this penalty. Employees who would have previously explored the employment tribunal route to address their concerns may, in future, choose an application to the Reinstatement Committee instead because there is no application fee.
Proposals for reform
The Government report stated that it plans to legislate so that reservists will be able to claim unfair dismissal without a qualifying period where they are dismissed for reasons relating to their reserve service. The Government also intends to gather evidence on whether reservists are disadvantaged when seeking employment and, if necessary, will introduce legislation to provide additional protection for applicants. No date has been given for these proposed changes.
Reservists can gain a wealth of experience and wider skills from their duties as a reservist, which can be transferred directly to the workplace. However, to ensure that mobilisation and the subsequent return to work go smoothly, employers may need to invest planning time to consider the effect on the business. This will become even more important if, as intended, the number of reservists increases.