In Focus: Future Reserves 2020 A Consultation PaperThis article is featured in the latest In Focus.
Detailed information on key aspects about employers rights and employers legal responsibilities. In most cases, having a Reservist on your payroll will make no difference to the way you manage routine employee welfare. But as an employer you do have certain legal responsibilities regarding their liability for mobilisation and reinstatement at work afterwards.
There are two main pieces of legislation which you need to be aware of:
The Reserve Forces (Safeguard of Employment) Act 1985 (SOE 85) provides Reservists who have a liability to be mobilised with two types of protection:
- Protection of employment: the Act provides protection from unfair dismissal and makes it a criminal offence for an employer to terminate a Reservist’s job without their consent solely or mainly because he or she has a liability to be mobilised; and
- Rights to reinstatement: the Act provides a legal right to reinstate the Reservist to their former job, subject to certain conditions.
The Reserve Forces Act 1996 (RFA 96), sets out the call-out powers under which Reservists can be mobilised for full-time service.
Your rights as an employer
- The Ministry of Defence aims to give at least 28 days notice of mobilisation, although the Reserve Forces Act 1996 gives no statutory requirement for a warning period prior to a Reservist being called out.
- If a Reservist is mobilised and you believe their absence would cause serious harm to your business or a related business, you have the right to seek exemption, deferral or revocation of the mobilisation.
Employers financial assistance
- If your Reservist is mobilised you don’t have to pay them any salary or associated benefits (such as pension or company car) for the duration of their operational duty. A Reservist can claim for any benefits you stop so they won’t be worse off. Find out what financial assistance is available for Reservists.
- You are also eligible for financial assistance to cover the costs of finding a temporary replacement or retraining your Reservist employee under certain circumstances on their return.
- By law, you don’t have to give a Reservist additional leave for training, either paid or unpaid. Many employers choose to do so, because they realise that such training gives them valuable skills that can be transferred directly to the workplace.
Your legal responsibilities
Protection of employment
- If your Reservist employee is mobilised, when they return you have an obligation to reinstate them in the same role and on equally favourable terms and conditions as before (or as near as practicable). They’re entitled to be re-employed for a minimum of 13, 26, or 52 weeks, depending on their length of employment prior to mobilisation. Find out what happens when a Reservist returns to work after mobilisation.
- You can’t make a Reservist redundant on the grounds of their Reserve Service duties or their liability to be mobilised. Reservists can be included in the redundancy pool if this is necessary due to a downturn in business or closure of a department or branch. However, all employees should be treated consistently, and redundancy criteria should not discriminate against Reservists on the grounds of their Reserve service or call-up liability. See redundancy advice for more details.
- You should be informed through the Ministry of Defence’s “Employer Notification” system if you employ a Reservist or if an existing employee joins the Reserve Forces (except in Northern Ireland where this does not apply). You are not allowed to dismiss an employee because he or she is, or has a liability to be, mobilised for full time service because they are a Reservist. See finding out you employ a Reservist.