Legal dilemma: Redundancies and reservists

Our company operates in the construction industry. I’ve just been told by my managing director that I need to reduce our headcount by 15 staff due to a massive downturn in business. I feel pretty confident about the legislation on redundancy, but in one of the departments where I need to make cuts I have two army reservists. One is currently on active tour in Iraq and is due to return in two months, after a three-month mobilisation, and the other is about to leave for Afghanistan for five months. How should I play this?

In addition to the legislation concerning redundancy and unfair dismissal you should also familiarise yourself with the provisions of the Reserve Forces (Safeguarding Employment) Act 1985. This Act provides protection for those liable to be mobilised and reinstatement for those who are returning from mobilisation. Importantly, the Act prevents employers from dismissing employees who are members of the reserve and auxiliary forces – eg, the Territorial Army – solely on the grounds of their full-time mobilisation. Employers who breach the provisions of the Act may be ordered to pay compensation and/or a fine.

Even though the reservists may be absent from work due to mobilisation during the redundancy exercise you should still include them in the pool and selection process. If you do not, the remaining employees who end up being made redundant could question why the reservists were not included in the pool and claim that their own selection was unfair.

It is also important to include the reservists as the Act places an obligation on employers to reinstate employees on their return from mobilisation (although this is subject to certain important provisos and time limits). The employee who is soon to return from Iraq will have the right to apply for reinstatement and may make this application at any time up to six months from the date of returning from mobilisation.

You also need to think carefully about the selection criteria you use so that, if the reservists are selected for redundancy, you are able to demonstrate that their dismissals were not connected to their mobilisation, but were genuinely due to the downturn in business.

Before you start the process you might also want to contact SaBRE (Supporting Britain’s Reservists & Employers) they provide useful guidance and support to reservists and their employers on employment issues.

Emma harvey, partner, DWF

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