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Dodging the Draft: As reservists in the workplace face call-up
In response to the continued military build up in the Middle East the Defence Secretary Geoff Hoon has recently announced the mobilisation of a further 4,500 British armed forces reservists. This triples the number of reservists announced previously, meaning a total of 6,000 have been called up in the UK. Britain is expected to have a military presence totalling approximately 30,000 personnel in the Gulf by mid-March 2003. Depending on how events unfold in the Gulf, further substantial mobilisation orders remain a distinct possibility. Given that there are currently in excess of 150,000 reservists (including the Territorial Army) across the UK who are liable for call-up, the potential impact on businesses across the UK is considerable. |
What is a Reservist?
There are a number of different types of reservists but the most likely people to be affected by mobilisation orders are members of the Volunteer Reserve Forces. Most reservists are in some form of work and more than half of these are in full-time employment. They train in their spare time so that they are ready to serve alongside regular forces should they be called up if there is a threat of war or for humanitarian/peace-keeping operations. Should the Secretary of State for Defence, issue a call up order reservists are normally mobilised for between 3 to 12 months. The loss of such staff could clearly have major implications for employers.
The statutory rights and duties of those affected by a call up and their employers are set out in the Reserve Forces (Safeguard of Employment) Act 1985 and the Reserve Forces Act 1996. The individual and his or her employer will receive call up papers approximately 14 days before the anticipated mobilisation, setting out the date and possible duration of the mobilisation together with details of their statutory rights and obligations. A reservist who fails to comply with a call-up notice would be guilty of absence without leave or desertion. Furthermore, an employer (or any other person) who tries to induce a reservist to desert or be absent without leave is also guilty of an offence. |
Exemptions
Both the reservist and his or her employer will have the right to request that the notice be deferred or revoked, on the basis that the loss of the employee will cause serious harm to the business, and that harm could not be prevented by the granting of financial assistance. Serious harm is not exhaustively defined in the Regulations, but can include the following: loss of sales, markets, reputation or goodwill; impaired ability to produce goods or provide services; and harm to research and development. Employers are able to object if it can be shown that it is not possible to replace an individual with a temporary employee or to share his or her work amongst others.
Applications for an exemption must be made within 7 days of the employee being served with the mobilisation notice. The application must be made to an Adjudication Officer appointed by the MoD. There is a right of appeal to an independent tribunal if an employer's application is refused. During the call up in 1991 around half of all appeals against mobilisation orders were successful. |
During Call-Up
There is no obligation on an employer to pay the reservist his or her normal salary as the reservist will receive service pay from the MoD, plus a 'reservist's standard award' to cover shortfall in his or her civilian earnings. Reservists are entitled to payment from the MoD to cover the employer's contributions to any pension fund, provided they continue to make any necessary employee contributions to the fund. The MoD will also pay reservists a sum equivalent to any payment employers would normally make in respect of accommodation or educational fees, medical insurance, health insurance and life assurance premiums.
Employers should note that during a redundancy situation, a mobilised reservist has greater protection than comparable employees, as although an employee may be selected for redundancy while military service is ongoing, he or she will still have the right to apply for reinstatement upon return. An employer must then offer either the old job back, or the most favourable job that it is reasonable and practicable to offer. Employers are expected to dismiss someone with the same or less service if that is the only way of making room. |
Keeping the job open
Employers should be aware that they have an obligation to re-employ reservists who were last employed by them in the four-week period prior to being called up. Reservists have the right to be taken back into employment after demobilisation, no matter how long the military service has lasted. This right applies for six months following the end of military service. 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. Therefore the employee should have the benefit of any pay rise or other favourable change of terms and conditions that he or she would have benefited from had he or she not been mobilised. If absolute reinstatement is not reasonable and practicable, then the employee must be offered the most favourable terms and conditions that are reasonable and practicable in the circumstances.
An employer must continue to employ the reservist for a minimum period of time following demobilisation. Employers should not dismiss reservists, or alter their terms and conditions of employment during the protected period unless it becomes unreasonable and impracticable. These rights are in addition to an employee's usual common law and statutory rights.
An employee who has not been reinstated, or who complains that an offer of reinstatement is not satisfactory, or has been dismissed before the end of the protected period, can make an application for reinstatement or compensation. Employers should be aware that the failure to comply with such an order is a criminal offence, incurring a fine of up to £1,000 and an order for payment of compensation to the employee, which is recoverable as a civil debt. |
Additional costs for employers whilst reservists are called-up
Employers may face additional costs, such as overtime or replacement staff. Payments can be made to employers to cover such costs up to certain limits. There are various categories of payment. The 'employer's standard award' is comprised of a lump sum payment (e.g. to cover recruitment and training of a replacement), any additional recurring costs (e.g. salary paid to a replacement, agency fees and staff overtime) less the salary that would ordinarily have been paid to the reservist and an administration expense of £55 per employee mobilised. There are also circumstances where employers can apply for 'hardship' and 'retraining´ awards. |
Dismissing reservists to avoid the red tape
It is a criminal offence to dismiss a reservist before mobilisation solely or mainly because of the risk that he or she may be called up for military duties. The reservist would also be entitled to compensation. However, the law does not protect reservists from discrimination in job applications. |
Conclusion
There are extensive rules and procedures which employers should follow when dealing with employees subject to mobilisation orders. Employers who fail to comply with such procedures risk facing criminal prosecution and large fines and/or compensation orders being made against them.
If you would like any more information about this, or related employment matters, please do not hesitate to contact Adrian Berkeley at Berkeley Solicitors, 100-102 Market Street, Droylsden, Manchester M43 6DE. Telephone - 0161 371 0011
February 2003
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