The Call up of Uk Reservists: Your Employment Questions Answered
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THE CALL UP OF UK RESERVISTS: YOUR EMPLOYMENT QUESTIONS ANSWERED In the UK, approximately 46,000 people belong to the Volunteer Reserve Forces and most of these individuals are employed in some way. On 14 January 2003, Geoff Hoon, the Secretary of State for Defence, announced to the House of Commons the first call- up of Territorial Army volunteers and other Reservists since the Suez Crisis, 45 years ago. By the end of January 2003, a large number of the initial phase of 1,500 call-up notices had been sent out. Further notices are likely to follow; defence minister, Dr Lewis Moonie, has stated that the January call-up was just the first in a series of compulsory call-ups for Reservists. With British troops deployed in the Balkans, Sierra Leone and Afghanistan, it is perhaps unsurprising that the Government is calling on Reservists in this way. Employers need to know what to expect if employees are called up: how to deal with call-up; understanding the employee's employment rights during and after military service; as well as the extra employment protection afforded to Reservist employees. As an employer, you may find Reservist employees involved in either voluntary mobilisation or compulsory mobilisation. In both circumstances, the employer should receive notification from the employee before the mobilisation occurs. A Reservist who receives notice of compulsory mobilisation should also receive a letter for his employer and it is the employee's responsibility to pass this on, to inform the employer of its statutory rights and obligations. The Ministry of Defence currently states that a Reservist's operational tour may last just three months and will not exceed 12 months. Q. Can an employer refuse to let an employee go? Where a Reservist employee makes a request for voluntary mobilisation (where no call- up notice has been issued by the Defence Secretary), the Reservist needs to obtain his employer's consent to his mobilisation, and the employer is not obliged to give consent. If the employer refuses, the Reservist must accept that decision. The situation is different where the Defence Secretary has issued a call-up notice; this involves compulsory mobilisation and different rules apply. A Reservist who fails to comply with a call-up notice would be guilty of absence without leave or desertion under the Reserve Forces Act 19961. An employer cannot refuse to let an employee go and if the employer (or any other person) tries to induce a Reservist to desert or be absent without leave they are also guilty of an offence. However, the Reserve Forces Act does allow employers the right to make an application to prevent the employee from going on active service. The employer has seven days from the date on which the Reservist receives his notice of call-up to apply to an Adjudication Officer, asking for the call-up notice to be deferred or even revoked, on the basis that the loss of the employee will cause serious harm to the employer's business. With good grounds, the seven day deadline can be extended by application to the Adjudication Officer. The employer must be prepared to demonstrate that the loss that will be suffered by the absence of the employee cannot be prevented by financial assistance from the Government. Business partners and the self employed have similar rights to apply to an Adjudication Officer. Q. What is meant by "serious harm to the business"? What constitutes serious harm is described in Regulations issued in 19972. The Regulations do not provide an exhaustive definition of serious harm, but state that it may include the following: (a) loss of sales, markets, reputation, goodwill or other financial harm; (b) impairment of ability to produce goods or provide services; (c) harm to research into and development of new products, services or processes. If, following an application from the Reservist's employer, the Adjudication Officer decides in favour of deferral or exemption for a Reservist, that decision shall cease to have effect if the Reservist's employment with that employer ceases. Upon termination of the Reservist's employment, the employer must, within seven days, notify the Adjudication Officer that the employment has ended. Q. Is there a right of appeal for the employer? The Adjudication Officer must notify the employer of his decision within two days of his decision being made. If the employer is dissatisfied with the Adjudication Officer's decision, there is a right of appeal to an independent tribunal called the Reserve Forces Appeal Tribunal. The Adjudication Officer may also review his decision at any time up to the commencement of the hearing of the Reserve Forces Appeal Tribunal. Q. Does the employee have the right to apply for deferral or revocation of call-up? The Reservist also has the right to apply to an Adjudication Officer for deferral or revocation of his mobilisation notice, again within seven days of receipt of the call-up papers. The Reservist may apply if (a) he or she has sole responsibility for the care of a child or disabled person and adequate arrangements for care by another person cannot be made; (b) serious disruption will result to a programme of vocational training; (c) a family owned business would suffer serious harm; (d) the Reservist has entered a new contract of employment but has not yet started work and the new employer refuses to postpone the commencement date until after the period of military service; or (e) because of some other ground which, for compassionate reasons, the Adjudication Officer should consider. Q. If an employee is called up, do we have to continue to pay his normal salary? The employer does not have to continue to pay the Reservist his or her normal salary during the period of call-up or mobilisation. Instead, the Reservist will receive service pay from the Ministry of Defence, as a normal member of the Armed Forces. In addition, the Reservist will receive a 'Reservist's standard award', to cover any shortfall in income, although the standard award is subject to a cap, depending on the Reservist's rank. The Reservist's salary for the purposes of calculating any standard award is taken from the 52 weeks of employment prior to call-up and the award may include a travel allowance for the loss of benefit of a motor vehicle provided by his employer. The bands of assistance available are as follows (based on the Army rankings referred or the equivalent in other Forces): ? the rank of Corporal or below: up to £22,500 ? Warrant officer, non-commissioned officer or, in the case of an officer, any rank below the rank of Major: up to £37,500 ? the rank of Major or Lieutenant Colonel: up to £55,500 ? the rank of Colonel or Brigadier: up to £70,000 ? the rank of Major General and above: up to £153,000 The Reservist may choose whether he continues to receive payment into a private pension scheme (with the MoD covering the employer's contributions), or receives the benefit of the Armed Forces pension scheme. In addition to the standard award, the Reservist may receive a hardship award if he can show that he will suffer financial hardship as a result of his call-up. The details relating to salary and awards are set out in Schedule 2 to the 1997 Regulations3. Any additional benefits which are made available are likely to be introduced through further Regulations. Q. Is the employer entitled to any compensation? The employer may also apply for a standard award of compensation; this was a change introduced by the Reserve Forces Act 1996. The employer's standard award is intended to compensate the employer for the loss of the employee over an extended period and the related costs. It is comprised of three elements: an initial replacement award, an ongoing administration award and a re-training award. (a) The initial replacement award is a lump sum for the employer's one-off costs in replacing the Reservist (advertising, interviewing, etc.); the amount is limited to the lesser of 6% of the Reservist's annual salary from that employer (based on average weekly earnings) or £2,400. (b) The ongoing administration award is intended to cover recurring costs, such as agency fees or overtime costs; the amount is limited to the lesser of 4% of the Reservist's average weekly earnings or £31, multiplied by the number of weeks of military duty. (c) The re-training award is based on the actual cost of necessary re-training for the Reservist (e.g. to regain or renew qualifications) upon returning to work after military service, up to a maximum of £2,000. The employer may also apply for a hardship award if the call-up of the Reservist will cause financial hardship which will not be sufficiently relieved by the employer's standard award. The MoD advises that to be considered for a hardship award, the employer must have costs exceeding one and a half times the amount available under the initial replacement award and/or the ongoing administration award. Q. How long is military service likely to last? Under normal circumstances, the maximum continuous periods of service for a Reservist are three years, 12 months and nine months; the length of the period depending upon the circumstances under which the Secretary of State for Defence makes an order authorising call-up. At present, Reservists are unlikely to be called up for a period exceeding 12 months and the MoD advises that employers should work on the assumption of an average period of seven and a half months.