Q Can employers refuse to employ reservists?
A Yes. There is nothing to prevent a prospective employer declining to employ a job applicant on the grounds of that applicant being a reservist.
New rules, applicable from 1 April 2004, have highlighted this apparent gap in UK discrimination legislation. These rules require new recruits of the Volunteer Reserve Forces, as a condition of service in the Armed Forces, to agree that their unit may inform their employers about their reservist status. Should they change jobs, they must consent to their new employer being informed. Once a reservist gives the requisite consent, they will be given four weeks to tell their new employer, after which time the unit will take action.
The new notification rules also apply to existing reservists when they next re-engage, usually every three years. Reservists who do not have to re-engage, such as commissioned officers, have until 31 March 2005 to notify their employers.
During employment, the reservist is slightly better protected. The Reserve Forces (Safeguard of Employment) Act 1985 makes it a criminal offence for an employer to terminate a reservist’s employment without their consent, solely or mainly on the basis that the reservist is likely to be mobilised.
Q What are the implications for an employer if a reservist employee is called up?
A If mobilisation is compulsory, both the reservist and the employer will be notified. The Ministry of Defence suggests that employers should be given at least two weeks’ notice of mobilisation, but this will be heavily influenced by external events.
It is a criminal offence for an employer to refuse to allow a reservist to be mobilised where the reservist has been compulsorily called up. Provided the employer acts quickly, however, there is an option to apply to an adjudication officer for the call-up notice to be deferred or revoked. The application must be made within seven days of the reservist being called up, and the employer must show that mobilisation is likely to cause the business serious harm.
Q Is any financial assistance available to employers of reservists?
A As the reservist will receive service pay from the MoD, employers do not have to continue to pay their normal salary, even if service pay falls short of the reservist’s normal pay. The employer may voluntarily make up any shortfall.
The Government provides some financial assistance to employers to cover, up to certain limits, the extra costs incurred when a reservist is absent due to compulsory mobilisation, and a ‘retraining award’ may also be available.
Q Is the reservist entitled to return to their job after mobilisation?
A Reservists have a statutory right (provided they serve the correct notice within the correct timeframe) to be reinstated to the job that they had before mobilisation, on terms no less favourable than those which would have applied had they not been called up.
This means a reservist should benefit from any favourable changes in terms and conditions of employment, such as pay rises, that occur while they are away.
If re-employment in the same job is not possible, the reservist must be offered the most favourable occupation on the most favourable terms and conditions as are reasonable and practicable.
Under the Reserve Forces (Safeguard of Employment) Act 1985, following re-employment, a reservist’s job is protected against dismissal and changes in terms for between 13 and 52 weeks, depending on the reservist’s period of continuous employment prior to call-up. There are special rules applicable on the reservist’s return dealing with employees who have replaced the reservist during the period of mobilisation.
