Call-up of forces reservists
The problem
The Defence Secretary has announced a call-up of more than 1,500 reservists to serve in any possible conflict with Iraq. These reservists include the regular army reserve of officers, the long-term reserve, army pensioners and the Territorial and Army Volunteer Reserve. As an employer with reservists working for you, where would you stand regarding the loss of your employees, filling their positions, and the money you've spent training them?
Expert advice
The employer needs to ensure that he is clear about his legal obligations. He should consider the minimum re-employment time periods for each individual employee so that he is aware of the extent of his duty.
Provided that the reservists had worked for him for at least one year before call-up, he must re-employ them afterwards for a minimum of 52 weeks. There are shorter minimum periods of re-employment for those employees with less service.
It's crucial that the employer realises that the reservist must be re-employed in the same occupation and on no less favourable terms and conditions as before call-up.
If it's not possible for the employer to provide exactly the same occupation, the employer must provide the reservist with the most favourable occupation and on the most favourable terms and conditions as reasonably practicable.
An important point for employers to note is with regard to continuous employment.
For the purposes of calculating continuous employment, provided that the employee makes a proper application for re-employment and begins his re-employment no later than six months after his/her return from active service, continuity is preserved.
The weeks of absence will not count in computing the period of continuous employment, but the periods of previous employment and re-employment will be treated as unbroken.
It's also worth knowing that financial assistance is available to employers who are losing employees. Employers are entitled to standard and hardship awards, and may also be able to claim a retraining award if costs are incurred by the employer in retraining the employee on his/her return to work.
All claims for awards must be made for the person specified in the call-up notice to the adjudication officer appointed under the Reserve Forces (Call-out and Recall) (Financial Assistance) Regulations 1997. They must be made within four weeks of the day on which the reservist is accepted into service.
The law
Not only is it a criminal offence to dismiss an employee because he/she is a reservist, but failing to re-employ a reservist who has been called up is also a criminal offence under the Reserve Forces (Safeguard of Employment) Act 1985.
Employers of reservists called up under the Reserve Forces Act 1980 are obliged to re-employ the reservist after completion of service. However, this obligation applies only if the reservist was employed for four weeks immediately preceding active service and makes a written application to the employer within six months of returning.
Check list
\ Check which employees the regulations apply to - for example, reservists who were employed for four weeks immediately preceding active service.
\ Consult with the reservists and ensure they understand their rights.
\ Check the minimum obligatory re-employment periods.
\ Afterwards, ensure that the employee is re-employed in the same occupation and with the same terms and conditions as before call-up.
\ Ensure that received applications are within the required time limits.
\ Make a claim for financial assistance if appropriate, within the time limits.
Beware!
If a complaint is made relating to refusal of re-employment, an employer can be ordered to pay compensation equal to what the reservist would have earned in 52 weeks had he/she been re-employed.
Contacts
Steele's London Employment Team
Tel: 020 7421 1720
E-mail: lonemp@steele.co.uk
SaBRE (Supporting Britain's Reservists and Employers)
Tel: 0800 389 5459
Web: www.sabre.mod.uk
