Employers may have to reassess their policy on employing reservists following a recent tribunal case involving a Territorial Army soldier returning from Afghanistan. Georgina Fuller reports.
About 20,000 of the 35,000 men and women in the Territorial Army (TA), the largest of all the reserve forces, have been called to the front line since the invasion of Iraq in 2003. Most of these are civilian reservists with full-time jobs across a wide range of industries in the UK.
Employers have historically been supportive of their reservist staff, but the recent case of TA soldier Simon Sunderland, who was made redundant weeks after returning from Afghanistan, raised some serious questions about the do's and don'ts of employing reservists.
Sunderland believed his job as a production operator at engineering firm Cummins would be held open for him while he was on a 10-month tour of duty in May 2008. But he was one of 440 workers made redundant on his return, as a result of the recession.
An employment tribunal ruled last month that Sunderland's dismissal was a breach of the Reserves Forces (Safeguard of Employment) Act 1985. Cummins has since reinstated him, but a spokesman for the company warned that small businesses would not be able to afford to recruit reservists and risk an unfair dismissal claim.
James Hall, solicitor at Charles Russell law firm, says the Sunderland tribunal is a highly unusual case and that it has highlighted the potential conflict between discrimination laws and laws relating to the Reserve Forces.
"In essence, the case states that, for reservists, employers must assess their position for redundancy according to their length of service, rather than their ability or performance," Hall explains. "Traditionally, length of service was the way that most employers went about redundancies. However, because of the age discrimination legislation, employers should no longer do this for civilian employees."
It does, therefore, seem to be one rule for civilians and another for TA soldiers. The case also indicates how important it is for employers to be clear about whether an individual's contract of employment will continue during a tour of duty (mobilisation) or if the employee will need to reapply for their position on return.
Brad Taylor, head of HR at the Chartered Institute of Management Accountants, thinks that the government needs to provide more clarification and advice on employing reservists.
"If we can't make reservists redundant based on length of service, then what sort of criteria can we use?" says Taylor. "In the absence of tribunals and any sort of legal precedence, the Ministry of Defence (MoD) needs to offer more information."
But Taylor does not believe employers should be discouraged from recruiting TA soldiers, even if there are certain risks attached. "I can see how it could deter small businesses as it could be costly, but reservists have the sort of skills it would probably be hard to find elsewhere, such as team-working, leadership and organisational planning. They are very valuable to the workforce and should not be overlooked."
Tim Corry, campaign director for SaBRE (Supporting Britain's Reservists & Employers), believes there are tangible benefits for employers. "The average reservist receives the equivalent to 13 days of training in skills usable in civilian employment," he says. "Employers would have to pay more than £9,000 to purchase the same training in civilian skills as their employees receive as reservists," Corry notes.
Having a reservist or two in your workforce is also part of supporting and reflecting the community, Taylor adds.
Factoring in time for training is another issue employers have to consider, but many reservists take the time as part of their annual leave, according to Corry.
"Reservists do train regularly, and typically training time commitment is one evening per week and about 30 full days each year. However, this is rarely an issue as the training mainly takes place outside work hours," he says.
"Training is also made up of a number of weekends plus an annual training period of 15 days' continuous duty. For this, many reservists take the time off as part of their annual leave allocation, although some employers do take the decision to give the time off as unpaid leave."
There is also a maximum limit on the time that a reservist can spend on a tour of duty. The Reserve Forces Act states that they can only be mobilised once every three years. Corry points out that there is also an MoD policy where, whenever possible, a reservist won't be mobilised once every five years.
The employer also has the right to apply to the services for the mobilisation to be postponed or cancelled (an application for 'exemption' or 'deferral'), especially in cases where the absence of the reservist may be detrimental to be business or organisation. If the employer is not satisfied with the decision, they can appeal to an independent tribunal.
"From our work with employers, it is clear most understand if they take a 'what is practical and reasonable' approach, they will not have any problems," says Corry.
And Emma Bartlett, partner at Speechly Bircham law firm, points out that reservist employers do have some guidance as to what is considered "practical and reasonable".
"The MoD notifies employers if they employ one of its reservists so they can easily identify them and their obligations to them. An employer's rights and duties toward a reservist are also set out in the Reserve Forces Act 1996 and the Reserve Forces (Safeguard of Employment) Act 1985," Bartlett notes.
Problems will only arise when there is a discrepancy between the employer and the employee over the reservist's obligations about returning to work, she adds.
Evidence suggests that cases such as Sunderland are, reassuringly for employers and soldiers alike, few and far between.
"Of the 20,000 reservists mobilised since 2003, there have been just 37 cases that have started to go through the tribunal process. Most of these have been settled before they got to court," Corry explains.
And Taylor certainly believes that the pros outweigh the cons when it comes to signing up a TA soldier to your team.
"The current economic climate has meant there are more redundancies than usual. But you've got to weigh up the skills TA soldiers offer with the risk of getting it wrong, and take a wider perspective."
Employers are obligated to reinstate reservists in the same role and on equally favourable terms and conditions as before (or as near as practicable) when they return from a tour of duty. 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.
Employers can't make a reservist redundant on the grounds of their military duties or their liability to be mobilised. Reservists can be included in the redundancy pool if this is necessary due to a downturn in business or closure of a department or branch.
The employer is not obliged to continue to pay the employee during mobilisation, nor to continue any of their benefits or accrue holiday pay. The government will pay the individual's salary up to a cap of £200,000, as well as any pension contributions during this time.
The time spent mobilised is generally not included for the purposes of calculating continuity of service.
An employer can refuse to reinstate a reservist if it would result in the dismissal of another employee, provided that this individual held a position as permanent as the reservist and, at the time of mobilisation, had a longer record of service.
Source: Charles Russell and SaBRE