At a time when the number of full-time Armed Forces personnel (or ‘regulars’) continues to fall in tandem with the Government’s developing policy to backfill the Armed Forces with part-time service personnel (‘reservists’), will employers start to feel the unintended consequences of the UK’s involvement in another armed conflict?
Following the Government’s consultation, Future Reserves 2020 (‘FR20′), plans are developing to continue the reduction in regular headcount whilst significantly increasing the number of reservists to form a key part of a smaller but more integrated and adaptable military. Reservists can serve in any of the Army Reserve, Royal Navy Reserve, Royal Marines Reserves or Royal Auxiliary Air Force. Many of these personnel also fill regular civilian jobs during the working week. It almost seems inevitable therefore that tension will arise between employer and employee/reservist when balancing the competing interests of the employer’s business and the time commitment of military service.
So what are reservists’ employment rights in respect of their civilian jobs?
An employee who is a reservist will be expected to complete approximately 40 man training days per year as part of their military service. In addition to this they may be mobilised at any time to be deployed on full-time operations.
Employers are under no obligation to offer paid or unpaid time off for reservist employees to attend their annual military training. Employees may be expected to use their annual holiday entitlement for this, even if this results in employees returning to work less than refreshed from their break.
Likewise, employees have no right to time off when they are mobilised. Instead, following moblisation an employer is obliged to re-engage any employee who was employed by them in the four week period before they were mobilised. Much like an employee returning from a period of additional maternity leave, the returning reservist must be allowed back into their same job on terms and conditions no less favourable than those that would have applied had they not been mobilised. Alternatively, if re-instatement into their former role is not reasonably practicable they must be offered the most favourable terms and conditions available in the circumstances.
Continuity of employment may or may not be preserved during a period of mobilisation. This will depend on whether the contract of employment persists during this time or if it has been terminated. Employers of reservists should therefore set out a clear policy regarding employing reservists generally as well as the arrangements during a period of mobilisation.
And the penalties for non-compliance?
Although an employer does not have any obligation to allow an employee time off for voluntary mobilisation, if the employee is called-up (and mobilisation is compulsory) then an employer could face criminal charges for inducing the employee not to comply.
Likewise, if an employer dismisses a reservist on grounds that they may be mobilised in the future, it will face criminal charges. The employee may also have a claim of unfair dismissal against the employer too. Employers do need to be aware that the normal two year qualifying period for an unfair dismissal claim does not apply in these circumstances; a reservist has the right not to be unfairly dismissed for these reasons from day one.
In addition, if an employer does not adequately reinstate a reservist once they are demobilised, the reservist can complain to a Reinstatement Committee who can issue a reinstatement order or compensation. A failure to comply with the order will incur further compensation for the employee as well as a fine of up to £1,000 against the employer.
So what should an employer or potential employer of reservists do?
Have in place a clear policy of how its reservists will be treated both in respect of time off (if any) for their training commitments as well as during and after periods of mobilisation.
In the past few weeks the Ministry of Defence has published “Your guide to Employing Reservists”. The guide provides a useful summary of employers’ obligations as well as employers’ rights to claim financial compensation for employees who have been mobilised. In addition, the guide sets out the Ministry of Defence’s case for the benefits of employing reservists, such as the development of transferable skills that would otherwise cost the employer more than £8,000 to implement.
The reality is that, given the total number of reservists in active service, a very small percentage of employers will be affected. However, with the Government’s commitment to the recommendations of FR20, reservist numbers will continue to grow. When they do employers should be mindful of their obligations (as well as their rights), given the criminal penalties that could apply. Unlike the conflicts in which the reservists may serve, at least the consequences to the employer of non-compliance are clear.