Employers’ rights and obligations in relation to Armed Forces reservists

With Britain’s Armed Forces currently heavily committed in the ongoing conflicts in Iraq and Afghanistan, significant numbers of “reservists” have been mobilised for service in recent years. Reservists (members of the Volunteer Reserve Forces) are civilians who train for a military role in their spare time and who may be mobilised to reinforce the regular Armed Forces in times of war. Earlier this year, some of the UK’s largest employers joined a campaign by the Army to encourage employers to formalise their policy on eservists. There is an increasing recognition by employers that the skills and experience gained by reservists can be translated into and add value to employer organisations. This campaign comes on the back of highly critical press coverage of employers who have dismissed reservist employees mobilised for action in Iraq and Afghanistan. In this climate, it is very important that employers understand their rights and obligations in relation to Armed Forces reservists and that they implement the law appropriately.

The legal protection for reservists is found in the Reserve Forces (Safeguard of Employment) Act 1985. There are a number of other important features of this protection, and employers and employees alike must understand their respective rights and obligations. Breach by an employer of its obligations under this legislation may amount to a criminal offence and may also give rise to a liability to pay compensation to the employee. Some of the key features of the legal framework are:

• Reservists have the right to be re-employed in their former role within six months of the end of a period of compulsory mobilisation. (Employers are not obliged to re-employ reservists who have voluntarily mobilised.)

• It is unlawful for an employer to dismiss a reservist on the ground that he or she may be mobilised for military service. However, and while this apparent gap in the law has attracted some criticism, there is currently nothing to prevent an employer from refusing to employ an individual on the ground that he or she is an Armed Forces reservist.

• Reserve Forces may be mobilised for up to one year in every three years (although it is intended that this will be no more than one year in every five).

• The reservist’s contract of employment will be treated as continuous where he or she enters employment within six months of the end of his or her compulsory military service. However, that period of service will not count for the purpose of calculating the employee’s period of continuous employment.

• A reservist will receive military pay while mobilised. The reservist’s employer is not obliged to pay the reservist during this period of mobilisation.

• Reservists have yearly training commitments, including a two-week annual training camp. However, employers are under no obligation to grant a request by a reservist for additional paid or unpaid leave to undergo training.

• Employers have the right to recover the costs incurred on and associated with the mobilisation of reservist employees including, for example, agency fees, costs of advertising for cover, overtime payments or higher salary rates for temporary staff.

• Reservists should notify their employer of their reservist status. The employer is also entitled to be notified when an employee is to be mobilised, and it can apply for a deferral of or exemption from mobilisation if it is able to show that the absence of the reservist would cause serious harm to the business or undertaking or to a partner, proprietor or employee of that business.

The mobilisation of Armed Forces reservists is likely to continue to be an increasingly common issue for employers as long as existing military conflicts continue, and employers will appreciate that the consequences of treating a reservist unlawfully will potentially be very damaging, both legally and reputationally. However, provided employers act within the legal framework, the impact of employees’ reservist status is unlikely to be onerous and may ultimately be beneficial to the organisation.