Military Reservists to get more employment protection soon?

Posted on Aug 27th, 2013 | Employment law

At the beginning of July the Ministry of Defence published a whitepaper aimed at helping them plan their resourcing requirements when reserve forces are deployed on operations. The whitepaper made several suggestions relating to reservists’ normal employment.

The whitepaper made a commitment to provide employers with fewer than 250 staff “more notice [of when their staff will be deployed on operations] so employers are able to plan for the absences of their reservist employees.”

[Article updated 2016]

However, it did not specify what the notice period would be. Currently employers should be given at least 28 days’ notice. The MoD said they wished to work towards a situation where the MoD, rather than the reservist, would inform the employer when they were going to be deployed.

Currently there is a maximum time limit that a reservist can spend on a tour of duty (from 1st October this increases to 40 days per year and the maximum length of call-up period is increased from 9 months to 12 months), and reservists can only be mobilised once every 3 years.

The Territorial Army (now renamed as the Army Reserve), the biggest of the reserve forces, currently has 19,000 reservists and it requires 30,000 by 2018 and a total of 35,000 across all 3 Reserve services by 2020, so the Government are looking for ways to make it more attractive for Employers to employ a Reservist.

The Government recently consulted on employment protection for reservists and has responded, in this whitepaper, to this consultation by suggesting that it:

  • Is considering introducing legislation to make it unlawful to discriminate against reservists
  • Gives micro, small and medium sized business £500 a month per reservist when their staff are engaged on operations (this has come into effect from 1st October 2014, for all employers with less than 250 employees and with a turnover below £26 million).
  • Revises the financial assistance regulations for all employers, as many employers feel the current levels of financial assistance to be inadequate and making a claim overly bureaucratic

The Government are still gathering information of alleged discrimination against reservists so their first suggestion may or may not be implemented.

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Reservists are already protected, under the Reserves Forces (Safeguard of Employment) Act 1985, against dismissal solely or mainly on account of any duties they have to undertake – here dismissal would be a criminal offence and protection exists irrespective of whether formal notification of mobilisation has been given to the employer.

However, at the moment, reservists cannot generally claim for unfair dismissal (including redundancy) in an employment tribunal until they have the minimum period of continuous service (2 years from April 2012). As periods of mobilisation generally do not count towards continuous employment it can take reservists longer to gain this protection.

The Government have now changed the law to make reservists exempt from this statutory qualifying period for bringing an unfair dismissal claim where the dismissal is for reason of the employee’s reservist service (so it would not apply where a reservist has been dismissed for capability or conduct, for example). And from 1st October 2014 where an employee is dismissed exclusively (or mainly) because he or she is a member of a reserve force, the normal 2-year qualifying period will not apply.

Other information about Reservists’ employment as things stand at the moment:

  • Employers are obliged to reinstate reservists in the same role, and on equally favourable terms and conditions as before, on their return, if this is practicable. They are entitled to be re-employed by the employer for a minimum of 13, 26 or 52 weeks on their return (depending on their length of employment prior to mobilisation). If the employee is not satisfied on returning to work (with an alternative job or failure to re-deploy) he/she is able to complain to a Reinstatement Committee – who can order an employer to re-employ the employee or award financial compensation. Failure to comply with an order made by the Reinstatement Committee can result in an employer being liable to a summary conviction (criminal sanction) and a fine up to £1,000. There are currently no application fees for an employee to a Reinstatement Committee (unlike a normal Employment Tribunal).
  • Reservists are likely to require time off for training and Employers have discretion whether this paid or unpaid leave (from their holiday entitlement or unpaid leave is granted).
  • Reservists generally do not accrue holiday entitlement from their main employer while they are mobilised, and do not continue to be paid by their main employer. The Employer does not normally continue to pay employer contributions to a company pension scheme.
  • Employers are able to seek assistance from the MOD with the cost of finding a temporary replacement for the deployed employee (including the cost of advertising and recruitment).
  • Time away on mobilisation does not break continuity of employment, but it does not count towards continuous service when calculating for example a redundancy payment.
  • At the moment employers can apply for the mobilisation to be postponed or cancelled in cases where the absence of the reservist may be detrimental to the business. Employers only have 7 days to apply but can appeal the decision.

The Government published a ‘Reservist Employer ToolKit’ in October 2015 which you can read here.

If you are an Employer and need ongoing professional help with any staff/freelance issues then talk to Lesley at The HR Kiosk (click here) – a Human Resources Consultancy for small businesses – you can hire us for as much time as you need.

Please note that the advice given on this website and by our Advisors is guidance only and cannot be taken as an authoritative or current interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.

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