Coronavirus and Armed Forces Reservists
With the Ministry of Defence announcing that they are expecting to mobilise up to 3,000 armed forces reservists to aid the military response to the coronavirus pandemic for at least six months, employers with reservist employees will be affected. We consider the position for employers below.
The Ministry of Defence states that, at the moment, only reservists with specialist skills are being called out. In addition, it is scoping who else may need to be called out and, if selected, the reservist should inform their employer and ensure there is no compelling reasons why they cannot be released. View Government guidance on reservists.
Employers already furloughing employees as a result of coronavirus disruption may not be immediately affected by the call out. However, others are already struggling for manpower as demand for their services have soared. In both cases, employers should be aware that reservists have special protections, including a right to return to work on demobilisation.
Must An Employer Release A Reservist?
It appears that, currently, reservists are being asked to volunteer for mobilisation, in which case they must seek their employer’s consent.
However, the MOD anticipates using compulsory mobilisation where necessary. If the employer believes that the mobilisation of an employee will cause serious harm to its business, it may apply for a call out notice to be deferred, revoked or for an exemption to be made for the particular reservist. However, there are limited circumstances in doing so. The process is explained to the employer in the call-out notice that employers receive at the start of the process and employers should note the need to act quickly if they wish to object. This is because an application must be made within seven days of the date of service of the call out notice. After the seven day period an application can only be made with permission of the adjudication officer.
To make an application the employer must provide certain prescribed information including whether the employee in question has some special qualifications and a statement on how the business would be harmed as a direct consequence of the reservists absence. It would also need to provide confirmation that staff with similar qualifications and training or experience are not available to cover the reservist’s absence and have not been given notice of termination or redundancy since the employer became aware that the reservist is to be called out. There is also a need to provide reasons why the absence of the reservist cannot be accommodated or harm avoided by making new arrangements with customers, suppliers or others. Harm to the business can include: loss of sales, market, reputation, goodwill or other financial harm; or impairment of the ability to provide services or produce goods.
Unless the employer has a significant number of reservists across the whole of the business or within a particular location hotspot, it can be difficult to get a notice overturned.
Duration Of Absence
The period of mobilisation will depend upon the particular operation and it is currently anticipated to last between six and twelve months. Where the MOD wishes to mobilise a reservist, they will be issued with a call out notice which specifies the date on which the reservist’s mobilised service starts. The employer will also receive an information pack setting out details of the likely dates and duration of mobilisation and their rights as an employer. The MOD aims to give at least 28 days’ notice of mobilisation, but this is not guaranteed and the nature of some operations (particularly in light of the rapid changing landscape of Covid-19) means that this amount of notice is not likely to be possible.
Pay During Absence
Reservists are paid service pay while they are mobilised – the employer does not need to continue paying them their salary during this time. In addition, contractual benefits that are suspended by the employer during a period of mobilisation can also be claimed from the MOD by the reservist, although this is subject to a daily cap.
Employers are entitled to claim a number of different payments (referred to as awards) in respect of an absent reservist which are intended to cover the additional replacement cost and any other costs borne by the employer as a consequence of the reservist’s mobilisation (such as training, agency fees etc).
Managing The Absence
Employers should consider how best to keep in contact during the reservists absence, particularly given the evolving nature of the pandemic and its impact on both the employer and the period of mobilisation. The MOD has guidance on managing the period of absence in its employer handbook.
Returning To Work
Where employees are mobilised, the employer is required to keep their role open. At the end of the mobilisation period, the reservist must make a written application to the employer to return to work.
The employer is generally obliged to reinstate a reservist who makes an application for reinstatement, provided that the reservist was employed by them within the four-week period immediately before mobilisation. It should allow them to return, if possible, to their former role, and, if that is not possible, to a mutually acceptable role on terms and conditions which are no less favourable following their period of mobilisation. However, the obligation on the employer to reinstate the reservist does not apply in certain circumstances, such as where it would involve the dismissal of another long-serving employee.
An employer who dismisses a reservist solely or mainly on the grounds that they may be mobilised is guilty of a criminal offence and may also be subject to a fine and compensation. In addition, such a dismissal may also result in a claim for unfair dismissal and there would be no qualifying period for an unfair dismissal claim in such a case.
The government’s guidance is constantly being updated and I will review the content of these pages as more information becomes available.
If you have any questions please call me on 0114 360 0626 or simply email me at email@example.com.
Up-to-date information for individuals and employers on the spread of the coronavirus can be obtained from www.hpa.org.uk
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