Employing Reservists - a benefit not a battle by Amanda Finn, Head of Employment, Gullandss on 30-Jun-2014

Plans to restructure the Armed Forces means employers will need to familiarise themselves with the legal implications of employing Reservists, recommends Amanda Finn, Head of Employment at law firm Gullands.

The Government's proposed investment of £1.8 billion into the Reserve Forces over the next 10 years will inevitably lead to an increase in the number of employers encountering Reservists in their staff.

Having Reservists can be invaluable for the business with much of their training aimed at developing transferable core skills, something that will benefit every workplace. However, Reservists can be mobilised at any moment and employers are often concerned about the possibility of losing key members of personnel with very little notice and then what to do on their return.

Firstly, the mobilisation of staff should not come as a shock to employers. The Ministry of Defence (MOD) is obligated to notify an employer if an employee joins or re-engages as a Reservist and all Reservists are encouraged to discuss their commitments at the interview stage.

Whilst many employers, especially small business owners, may be concerned about their key employees suddenly leaving for a military operation, they cannot dismiss an employee because of their Reserve duties or liability to be mobilised. When taking on a Reservist it may also be necessary to adjust employment contracts, especially if it has previously been against company policy to have a second job.

On mobilisation, the MOD will provide at least 28 days' notice to employers and will send a copy of the call-out notice containing the Reservist's call-out date and details for claiming financial support.

Employers are not required to pay the Reservist's salary or any benefits, such as a company car, for the duration the Reserve is mobilised. The MOD will provide financial assistance and will cover employer contributions to a company pension scheme, as well as any additional salary costs incurred by the employer for hiring a temporary replacement, limited at £110 per day, as well as any costs of advertising for and recruiting this temporary replacement.

Employers who are concerned that the employee's absence will have a serious detrimental impact on the business have seven days from the call-out notice being served to apply for an exemption, deferral or revocation of the mobilisation. Decisions will be based on comparing the business' needs to the operation the Reservist has been mobilised for and will only be considered if the harm to the business includes any of the following:

• Loss of sales, markets, reputation, goodwill or other financial harm;
• Impairment of the ability to produce goods or provide services; or
• Harm to the research and development of new products, services or processes (which could not be prevented by the granting of financial assistance under sections 83 and 84 of The Reserve Forces Act 1996).

Employers have a duty to reinstate a Reservist upon their return in the same role and on the same terms and conditions as before for a minimum period of 13, 26, or 52 weeks depending on the length of employment before mobilisation.

If the Reservist's former job is no longer available, they must be offered suitable alternative employment. Reservists will not just turn up unexpectedly and are required to contact employers to confirm their return to work no later than the third Monday following their last day of service. Following this, employers have a responsibility to set a return to work date around six weeks from their last day of service.

Some employers find that Reservists need refresher training on their return to work and can apply for limitless compensation, providing that there is sufficient evidence to show that the Reservist could not have reached the required working standard by any other means and providing that the training course(s) would not have been undertaken if the Reservist had not been absent.

Having well trained and skilful Reservists as part of your staff can be extremely beneficial and good for business. Employers with concerns should consider managing mobilisation in a similar way to accommodating maternity leave, but with added financial assistance from the MOD and the opportunity to apply for exemption if the business is really going to struggle.

return to BW briefs