On Friday 26 September 2014 Parliament voted to take military action in Iraq. We have had a number of military engagements in recent years and as an employer you need to be up to speed with the rights of military reservists within the workplace as they can be mobilised for military service at any time.
In addition, they are expected to attend regular training. Since 2004, the Ministry of Defence (MoD) has informed employers when their employees join or re-engage as reservists.
Who does the term military reservist refer to?
Members of the Reserve Forces consist of, the Territorial Army, the Royal Naval Reserve, the Royal Marines Reserve or the Royal Auxiliary Air Force.
The relevant legislation
The rights and duties of reservists are contained in the Reserve Forces Act 1996, the Reserve Forces (Safeguard of Employment) Act 1985 and the Defence Reform Act 2014, which was passed on 14 May 2014.
Under section 17 of the Reserve Forces (Safeguard of Employment) Act 1985, it is a criminal offence for an employer to dismiss a reservist because they are called out or likely to be called out. However, reservists have previously been placed at a disadvantage when making claims for unfair dismissal because periods of call-up are not usually included for continuity of employment purposes. This means that it is more difficult for reservists to satisfy the requirement for two years’ qualifying service.
However from 1 October 2014 the need for two years’ qualifying service will be removed when the dismissal is connected with the employee’s membership of the Reserve Forces. This does not mean that a dismissal that is in connection with the employee’s reservist duties will be automatically unfair; it simply removes the requirement for two years’ qualifying service in order to bring a claim.
Rights of return
It is unlikely that many unfair dismissal claims will be brought by reservists even once the requirement for qualifying service has been removed. This is because section 1 of the Reserve Forces (Safeguard of Employment) Act 1985 provides that a former employer is obliged to re-employ any reservist who was employed in the four-week period before mobilisation. The employee must be allowed to return to their job within six months after the end of their military service, and re-employment should be in the same job and on terms and conditions no less favourable than those which would have applied if there had been no call-up.
If reinstatement is not reasonable and practicable, the employee must be offered the most favourable terms and conditions that are reasonable and practicable in the circumstances.
If a reservist is not taken back by his employer a claim for failure to reinstate could be brought at a Reinstatement Committee and as this is not an employment tribunal, no fees are payable.
At present, when military reservists are called up they are paid directly by the MoD and employers can claim expenses in respect of additional costs incurred whilst replacing the reservist up to a maximum of £110 per day.
From 1 October 2014, micro (less than 10 employees), small (less than 50 employees) and medium (less than 250 employees) employers will also be able to receive up to £500 per month for each full month a reservist is absent from work. This amount is reduced pro-rata for parts of a month or for part time employees.
Joanna Dobie, Senior HR Consultant, Alcumus Group