We have an employee who is a member of the Royal Naval Reserve and is asking for more than two weeks’ leave to attend an annual training camp. Are we obliged to grant time off?
As well as weekly training sessions, reservists are asked to attend an ‘annual camp’ for 15 days of continuous training. While employers are under no obligation to grant additional time off, either paid or unpaid, many employers offer flexible arrangements.
Of course, employees are also free to use their annual leave entitlement for a training event, where an employer does not grant any additional benefits.
We have several employees who are likely to face mobilisation in the event of further conflicts arising. Are we able to appeal against a decision to call-up one of our employees?
Under the Reserve Forces Act 1996, reservists can be mobilised into full-time service with the regular forces to assist in military operations. An employee who chooses to volunteer for service will have to obtain their employer’s consent. However, in the event of a compulsory mobilisation, the employer’s consent will not be required.
Compulsory mobilisation may take place where, for example, it appears that national danger is imminent or war-like operations are in preparation. The employer will be notified by the Ministry of Defence (MoD) of the date and possible duration of the mobilisation.
An employer has the right to seek a deferral or exemption from their employee’s call-out, on the basis that the employee’s absence would cause serious harm to the business, which could not be prevented by the granting of financial assistance. Serious harm could include loss of sales or reputation, a serious impairment to the production of goods or demonstrable harm to research and the development of new products.
Any application must be made to the adjudication officer, appointed by the MoD, within seven days of the reservist being served with a mobilisation notice. The adjudication officer will then balance the needs of the employer and the needs of the operation – for example, does this particular reservist have specialist skills that are essential for the military operation?
What obligations do we have to pay a reservist during call-up?
There is no obligation on an employer to pay a reservist their normal salary during a period of call-up. Reservists receive financial assistance during their period of mobilisation from the MoD to cover any shortfall between civilian pay and their service pay. Additional compensation may be paid for the loss of benefits during mobilisation, such as health insurance, company car and childcare benefits.
What is the status of an employee’s contract while on call-up – for example, will their holiday pay continue to accrue?
A reservist’s contract is effectively suspended during any period of military service until an application is made for reinstatement. There is no obligation on an employer to allow reservists to take holiday they would have accrued while away. However, a reservist is entitled to a period of ‘post tour’ leave, which accrues at the rate of 2.5 days per month of permanent service. Provided an employee is re-employed within six months of the end of their military service, their employment will be considered continuous.
One of our employees is a member of the Territorial Army. If they are called up for service, would we have to keep their job open?
Employers have an obligation to re-employ reservists who were last employed by them in the four-week period prior to being called up. This right applies for six months following the end of military service. Re-employment should be in the same job and on terms and conditions no less favourable than those that would have applied if there had been no call-up, and an employee should have the benefit of any pay rise had they not been mobilised.
If absolute reinstatement is not reasonable or practicable, then the employee must be offered the most favourable terms and conditions that are reasonable and practicable in the circumstances.
An employee who has not been reinstated, or who complains that an offer of reinstatement is not satisfactory, or has been dismissed before the end of the protected period, can make an application for reinstatement or compensation to a reinstatement committee. The committee may order reinstatement or compensation. A failure to comply with such an order is a criminal offence, incurring a fine and an order for payment of compensation to the employee.
If we have to keep a job open during call-up, is there any financial assistance to cover additional costs?
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Employers may face additional costs, such as overtime, costs of transferring an employee from another area or advertising costs to find a replacement. Payments can be made to employers to cover such costs up to certain limits. The Reserve Forces (Call-out and Recall) (Financial Assistance) Regulations 2005 allow employers to claim assistance of up to £110 per day.
Should we have a policy on handling issues in relation to reservists?
With the total number of reservists in the UK exceeding 235,000 and with a number of British reserve troops currently supporting military operations in areas such as Afghanistan and Sierra Leone, all employers would be well advised to formulate a policy. As a minimum, the policy should cover the statutory obligations of the employee and the employer, contractual issues such as pay, annual leave, pension benefits, company cars, and so on. Employers should also consider issues such as time off for training activities and any issues surrounding demobilisation.
Matthew Yates, partner and head of employment, DWF Manchester
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