The deployment of army reservists in Iraq requires a balancing act between the employee’s right to be reinstated on their return, and the employer’s right to protect its business interests.
Any fears that the call-up of around 10,000 reservists to serve in Iraq would lead to many taking legal action against employers who fail to re-hire them are misplaced.
Of about 7,500 reservists who have been ‘de-mobbed’, just 20 who have served in Iraq have taken legal action against employers that haven’t re-hired them on their return. Nearly all of them lost their cases, which are heard by bodies called reinstatement committees.
Tim Corry, campaign director for the Sabre (Supporting Britain’s Reservists & Employers) organisation, said: “The reservists have lost nearly all the cases purely because they did not either follow the rules or did not formally ask their employer for their job back.”
This shows that some reservists are unaware of the regulations covering reinstatement after call-up, which stem from the Reserve Forces Safeguard of Employment Act (1985), or have not sought legal or expert advice. As Corry said, it also indicates that almost all affected employers are treating their reservist employees fairly.
The Ministry of Defence (MoD) claims advice on legal rights is given to reservists who are mobilised. Sabre said reservists are also briefed on issues surrounding returning to work shortly before demobilisation.
But the MoD does not provide ‘formal’ legal aid or advice for reservists facing reinstatement issues, though it said: “We will intercede on behalf of reservists, and do our best to resolve any misunderstandings”.
The Act requires reservists facing reinstatement before or on their return to the UK, and for employers to reinstate them in the same or similar jobs on comparable terms and conditions.
If the employer refuses, the reservist can apply to a reinstatement committee. The only legally acceptable grounds on which a reservist can lose a job is if their employer is declared bankrupt or closes the business.
The committees should convene and reach decisions more quickly than employment tribunals, but Sabre admitted it can take months for cases to be heard.
Territorial Army corporal Paul Brown, of Leeds, recently returned from Iraq after serving eight months with the Royal Logistics Corps to find that his job as a distribution manager with pharmaceutical wholesale firm UniChem had disappeared. “I had a lot of worries while in the Gulf, but losing my job wasn’t one of them”, said the father-of-three.
UniChem said the job was axed during a restructuring and that it had offered Brown another post. It said he refused the offer and took redundancy plus pay in lieu of three months’ notice.
Managing director David Coles said: “The decision to change our business structure within the Leeds area and its subsequent effect on Paul’s job had absolutely nothing to do with his absence on military service.
“We admire Brown and the other members of the Reserve Forces, several of whom are on our staff, for their bravery and commitment to duty.”
Corporal Brown, who worked for UniChem for 20 months, plans to take his case to an employment tribunal and wants reinstatement in his former job.
Reservists who are refused acceptable re-employment have 13 weeks from the date of refusal to lodge their application for a committee hearing, and they must also notify a job centre.
If the reservist has been re-instated but isn’t happy with their new terms and conditions, they have a year from the reinstatement date to apply for a committee hearing.
Reinstatement committees usually reach a decision in a day, and can order employers to re-instate reservists on pre-mobilisation terms and conditions. It is a criminal offence for employers to refuse, and they can be fined.
Most employers have accepted the call-up of staff who are reservists.
There have been four call-ups for Iraq. In the first, 24 employers appealed against the call-up of their staff but 18 were withdrawn. In the second and third, 17 employers lodged appeals, and on each occasion, 15 were withdrawn. On the fourth call-up there were 21 appeals – 18 of which were withdrawn. Just four appeals went in favour of the employers concerned.
Sign up to our weekly round-up of HR news and guidance
Receive the Personnel Today Direct e-newsletter every Wednesday
In February 2003, there were reports, denied by the MoD, that 300 employers had appealed against the call-ups.
Reservists have been far more active in resisting call-ups. About 14,000 have been called up, of which Corry said 25 per cent appealed for deferrals or exemptions, and got them. Most worked for small firms which would have been hit hard by reservists leaving.
