Q&A: Reserve forces

The reserve forces have been in the news recently, as the Government has announced that the armed forces will be cut dramatically, and the number of reserves will be doubled to 30,000 to plug the gap. This of course means that you will be more likely than ever to have a reservist on your staff (if you don’t already) and that reservists will be more likely to be mobilised.

The law already provides some protection for employees in the reserve forces, but the Government is planning to strengthen this in order to support the new measures. However, some are concerned about the effect this will have on small businesses, and whether employees may be put off joining the reserves because of their employer’s concerns.

We look at the current law on reservists in our Q&A below.

• What are the reserve forces?

The reserve forces consist of the members of the Territorial Army, the Royal Naval Reserve, the Royal Marines Reserve and the Royal Auxiliary Air Force. As reserves, they may be mobilised at any time for full-time operations, and will be required to attend training.

•  How do I know if my staff are in the reserve forces, and can I object?

The Ministry of Defence notifies employers when employees join or re-engage as reservists, and gives an explanation of their rights and obligations. The employer is then able to apply for an exemption from mobilisation or a revocation or deferral of the mobilisation if the employee’s absence would cause harm to the business. This can include financial harm, impairment to the ability to produce goods and services and harm to research and development which could not be prevented by grants of financial assistance available to the employer. The application for exemption, deferral or revocation must be made within seven days of receiving the mobilisation notice, and there is a right of appeal if the application is refused.

•  Do they have a right to time off for training?

There is no legal obligation on employers to give reservists either paid or unpaid leave to engage in their training. The employees may be required to use their holiday entitlement or request unpaid leave from their employer.

•  What do I have to do if my employee is called up?

Although many people expect reservists to have a right to time off when they are mobilised, that is not the case. However, many employers do allow this in practice. In most cases, employees can be mobilised up to a maximum cumulative total of one year out of three.

Where a call-up notice has been issued, the employee would face criminal charges if he or she failed to comply with it. Any other person (including, for example, the employer) who induces an employee not to comply with a call-up notice, could also face criminal charges. The employer’s only option is to apply for an exemption, deferral or revocation as stated above.

•  Can employers get compensation?

It is possible for an employer to claim financial assistance where additional costs are incurred to replace an employee who is mobilised. However, this must be over and above the employee’s earnings. The assistance could cover things like hiring a temporary replacement and/or the cost of training the reservist on his or her return.

•  What happens when their call-up ends?

The main legal protection given to reservists is that an employer must re-employ any reservist who was last employed by that employer in the four week period prior to mobilisation. The employee must be allowed to return to their job within 6 months after they are demobilised, and should be employed in the same job and on terms and conditions which are no less favourable than if they had not been called up. If they are reinstated, they are then required to be kept in post for a minimum protected period which varies depending on how long they had worked for their employer prior to being mobilised (usually, the call up period itself will not count towards continuous service).

However, the above is subject to the employer’s right to refuse reinstatement if it would result in the dismissal of another employee who was employed before the reservist was mobilised, was as permanent as the reservist and who had longer service at the time of the mobilisation.

After they are demobilised, reservists must write to their employer (usually by the third Monday following the end of military service), making an application for reinstatement of their employment. The employer is under a duty to either reinstate or to offer alternative employment (subject to the above).

•  What are the penalties for breach?

If a reservist’s employment is terminated on the grounds that he or she may be mobilised at a future date, the employer will be guilty of a criminal offence. A court can order the employer to pay compensation to the employee as well as levying a fine.

In addition, the employee may, also, have a claim for unfair dismissal (subject to the usual qualifying conditions).

Reservists have a further right to complain to a Reinstatement Committee regarding their employer’s response following demobilisation. This Committee can order reinstatement or compensation, which is enforceable in a magistrates court. Any failure to comply with a reinstatement order may incur a fine of up to £1,000 plus compensation for the employee.

For advice on this or any other aspect of employment law, why not contact our friendly team on 01243 836840 or email [email protected].uk.