As the Government continues to call up reservists for possible military
action, Stephen Elliott explains the rights and responsibilities of employers
Can we refuse to release the reservist?
Refusing a reservist employee permission to go would amount to a serious
criminal offence. You may, however, apply to an adjudication officer for the
call-up notice to be set aside on the grounds that his absence from the
business would cause serious harm, which could not be prevented by financial
assistance. Examples might include loss of sales, damage to goodwill or
reputation or harm to research and development activities.
Do we have to pay the reservist while he is away?
Reservists receive service pay direct from the Ministry of Defence. So the
employer need not pay salary, pension contributions, private health insurance,
life insurance or other such benefits as these will be met by the MoD.
What happens to the reservist’s contract of employment while away?
It is not clear from the Reserve Forces Act 1996 whether a reservist’s
contract of employment will continue or terminate when called up. To avoid
problems on the employee’s return, therefore, you should agree before departure
whether the contract will continue.
Do we have to give reservists their old jobs back on their return?
Reservists are entitled to be re-employed provided they start work within
six months of demobilisation. Following re-employment, a reservist’s employment
is guaranteed for a set period determined by the length of service prior to
call-up. Failure to re-employ or offer a suitable alternative position could
lead to a fine of up to £1,000 and a compensation payment equal to what he or
she would have earned during the protected period of employment.
What conditions must reservists fulfil to get their jobs back?
They must apply in writing no later than the third Monday following
demobilisation; although a reservist who is unable to meet that deadline as a
result of illness or other good reason may apply late. The employee must
confirm the date they are available to return to work. This will normally be
confirmed in the written application for reinstatement but if not, they have
another 21 days to do so. The latest date they may stipulate for availability
is the sixth Monday following demobilisation.
What terms and conditions will the reservist be entitled to?
Normally reservists will be entitled to those terms and benefits of
employment which would have applied had they not been called up – pay rises or
other benefits, for example. Where the employer can show it is neither
reasonable nor practicable to offer those terms and conditions, the reservist
must be offered the most favourable terms and conditions which it is reasonable
and practicable to offer.
Can we appoint someone else to do the reservist’s job?
Yes, but you should take care, however, to ensure the replacement is clearly
told they being employed on a temporary basis and that the employment will
terminate when the reservist returns. A specially prepared offer letter or
employment contract will invariably be appropriate.
In accordance with the Fixed Term Employees (Prevention of Less Favourable
Treatment) Regulations 2002 the employer must ensure that the replacement’s
terms and conditions of employment are no less favourable than those enjoyed by
comparable permanent staff, unless any difference can be objectively justified.
What should happen when the reservist returns?
Unless there is alternative work within the organisation to which the
replacement is suited, you may have to dismiss the replacement to make way for
the reservist.
It is unlikely the replacement will have accrued the 12 months’ continuous
service required to present a claim of unfair dismissal; but this should always
be checked, particularly where the replacement has moved from elsewhere within
the organisation. Remember also that unfair dismissal can be claimed regardless
of length of service in certain circumstances.
This requires full consultation with the employee to avoid such claims, plus
detailed consideration of opportunities for alternative employment within the
business.
What happens if the reservist’s position becomes potentially redundant
during his deployment?
This presents the employer with special difficulties as a key component of a
fair redundancy procedure – full and effective consultation with potentially
redundant employees – will be impossible.
An employee told during military service that he or she has been made
redundant has the same right upon demobilisation as all returning reservists to
apply for reinstatement if not to his or her previous position then to the most
favourable position it is reasonable and practical to offer.
Can we claim back the costs of replacing the reservist?
Yes, but these are fairly limited. They include a lump sum payment (capped
at £2,400 or 6 per cent of the reservist’s annual salary, whichever is lower)
to cover expenses such as recruitment and training of a replacement; and an
administrative payment of £55 per reservist.
Additional recurring costs – eg overtime pay or cost of the replacement’s
salary, – may also be claimed, although an amount equivalent to the salary the
reservist would have received will be deducted. In more limited circumstances
hardship and retraining awards are available.
Details of how to apply for financial assistance and requirements on
supporting documentation, are set out in the letter which the MoD issues to the
employers of all mobilised reservists.
Find out more…
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Stephen Elliott is an employment solicitor at Newcastle firm Ward Hadaway
