Legal opinion: Employers and the reserve forces – a new partnership?

On 18 July 2011, defence secretary Dr Liam Fox announced the Government’s intention to invest £1.5 billion over the next 10 years in increasing the capability and training of the UK’s reserve armed forces. His announcement was precipitated by a review of the reserve forces entitled Future Reserves 2020. This concluded that while reservists make an outstanding contribution to armed operations such as defence medical services, their numbers have declined recently through neglect and they do not form a great enough part of the military.

Increasing the use of reservists

The plan to rebalance and increase the ratio of reservists in the military will no doubt affect current regular members of the armed forces, particularly given recent news of cuts in numbers. But what could it mean for reservists and their civilian employers? According to the Future Reserves 2020 review, enhanced reserve forces must be “underpinned by legislative changes which permit greater ease of mobilisation, better employee protection and greater recognition of employers”.

Mobilisation is the procedure for calling reservists into full-time military service. The Reserve Forces Act 1996 provides for mobilisation to be triggered where: there is national danger or great emergency; the UK faces attack; warlike preparations are necessary; or it is required to use UK armed forces overseas. However, there is now an intention to broaden legislation to enable the use of reservists in a greater range of circumstances, including: providing assistance in extreme weather; providing accident or security support; and assisting high-profile national events. Therefore, the frequency with which employers are required to accommodate reservist mobilisation and related cost will inevitably rise.

Employers’ rights

The existing rights of employers must surely survive such legislative change. Presently, upon receiving a mobilisation notice, the reservist or the employer may apply for deferral, revocation or exemption. This is governed by the Reserve Forces (Call-out and Recall) (Exemptions Etc) Regulations 1997, and, in the employer’s case, the ground upon which they may apply is that reservist absence would cause serious harm to their business. Examples encompass loss of sales, harm to reputation or goodwill, and impairment in producing goods and services, provided such harm is unpreventable through financial grants. Under the Reserve Forces (Call-out and Recall) (Financial Assistance) Regulations 2005, employers can apply for recurring replacement costs (capped at £110 per day), including overtime for remaining employees and salary costs of temporary replacements provided that they exceed the reservist’s usual cost. Employers can also claim the non-recurring costs of recruitment agency fees, advertising fees and the costs of employment training that reservists require when returning from mobilisation.

Employers should be aware that they are not statutorily obliged to pay reservists while mobilised, as the reservists receive military income. Further, they are not required to pay employees absent on reservist training and may choose to require individuals to take annual leave during such training. Employers should address such issues in internal policies.

Protection of employees

As far as the present protection of employees is concerned, the Reserve Forces (Safeguard of Employment) Act 1985 obliges employers to reinstate reservists returning from mobilisation to their prior roles, on terms no less favourable than had they not been mobilised. However, the reservist call-up period will not count towards continuous employment in the absence of contrary contractual provision. If it is not possible for a reservist to return to his or her former role, he or she should, as far as is reasonably practicable, be reinstated to the most favourable role on the most favourable terms. The 1985 Act also seeks to prevent employers terminating reservist jobs without consent because of mobilisation. The penalty to employers could, on summary conviction, be a fine, a compensation award or a reinstatement order. They may also be liable for unfair dismissal.

Currently, therefore, reservists have a degree of protection. As already suggested, however, if they are to be more widely utilised, there is a desire for “better” protection. Exactly what this might involve is not yet clear, but it has been suggested that reservist anti-discrimination legislation may be introduced, as in some other countries.

A new partnership?

In the first instance, employers may be uneasy about Dr Fox’s announcement. However, the Future Reserves 2020 review provides some solace when it suggests that employer support (through corporate social responsibility plans) for reservists may not only be encouraged, but recognised and rewarded. Kitemarks for employers of reservists could form criteria when selecting bids for Government contracts and there might be opportunities for joint funding, enabling reservists to obtain mutually beneficial qualifications and experience. Perhaps the review heralds the dawn of a new partnership between employers and the military.

Philip Minnis, solicitor, Rosenblatt Solicitors

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