Ross
Wigham looks at the obligations and rights of organisations employing Territorial
Army members.
Rights
of Employers
–
The employer may defer or seek complete release or exemption from having an
employee called out to service.
–
An employer may apply for financial assistance to compensate for any loss
suffered by having an employee called out to serve. Employers are entitled to
apply for a "standard award", a sum equal to 6 per cent of the
employee’s yearly income or £2,400 in addition to money to cover recurring
costs. A "hardship award" is available if employers can show they
have incurred costs of one and a half times the limit for the standard award.
–
Compensation will include assistance with provision of pension, allowances or
any other gratuities; in addition, a re-training award is available on the
return of the employee of up to £2,000.
–
The Secretary of State may suspend financial assistance where employees are
called up in times of national danger or great emergency.
Obligations
of Employers
–
If the employee has made an application for reinstatement, the employer must
re-employ the reservist in the position occupied immediately prior to being
called up for military service.
–
The terms and conditions must be no less favourable than would have been
enjoyed had the call up for service not taken place.
–
If this is not possible or practicable, the employer is still obliged to
reinstate the reservist in the most favourable position available.
–
In a situation where a position formerly held by a reservist is no longer
available on return, the employer cannot simply dismiss that individual on the
grounds of redundancy. The employer is
under an obligation to consider all other positions that may be reasonable in
the circumstances. Furthermore, if
there are individuals within the organisation who have been employed for a
lesser period of time, the employer should ‘bump’ them to accommodate the
returning reservist.
–
It is a criminal offence to terminate the employment of any person who is
liable to be called up, or who has actually received directions that they will
be called up.
Rights
of Employees
The
rights of employees are governed by the Reserve Forces (Safeguard of
Employment) Act 1985.
–
Employees have a fundamental right to be reinstated into their former position.
–
If the position is no longer available, they must be reinstated into employment
on terms and conditions that are either no less favourable or on the most
favourable terms available.
–
The right of reinstatement is to be for a minimum of 26 weeks from the date of
reinstatement.
–
If an employee has continuous employment for at least one year prior to the
call out, the entitlement to reinstatement will be for 52 weeks from the date
of reinstatement.
–
If an employer refuses to reinstate, the reservist is entitled to make an
application to the Reinstatement Committee which could order that the position
be made available or award compensation. There is no £50,000 cap as with unfair
dismissal and therefore no limit on the award that the reinstatement committee
could make.
–
Employees who are dismissed before they commence military service, where the
termination of their employment is on account of the service, would clearly
have a good chance of establishing that they had been unfairly dismissed.
Obligations
of Employees
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–
On return from active service, the employee must proactively request
reinstatement in writing. Requests for reinstatement must be made within the
period of military service ending and the third Monday after the end of
military service.
– If the request for reinstatement is not made within the
limited window of opportunity for such requests, the employee does not have the
protection of the 1985 Act.
