The Government recently said that it may introduce new legislation that would make it illegal for employers to ask prospective employees whether they are a member of the reserve armed forces. This could apply to members of the Territorial Army, Royal Navy Reserve, Royal Marines Reserve or Royal Auxiliary Air Force.
Following the recent cuts made to the numbers of army personnel, the Government is concerned that employers might be tempted to avoid employing reservists due to fears that they may – now more than ever – be called up to serve in the armed forces.
This is a difficult issue for employers. Employees who join any of the aforementioned reserve armed forces can be (1) mobilised at any time to take part in full-time operations, and (2) called upon to attend regular training courses. Employers are under no obligation to offer leave (either paid or unpaid) for reservist employees to undertake training. However, reservists’ employment rights are protected by two Acts: the Reserve Forces (Safeguard of Employment) Act 1985, which grants reservists the right to apply for their old jobs back following a call-up and protects them from dismissal on the ground that they might be called up; and the Reserve Forces Act 1996, which deals with the circumstances in which reservists can be called into full-time military service.
In the event of an employee’s call-up, the Ministry of Defence must provide the employer with written notice of the employee’s mobilisation. The employer has the right to seek a revocation or deferral of the mobilisation if it can be shown that it would cause harm to the business (that grants of financial assistance available to the employer would not prevent.)
In the event of a call-up, an employer is obliged to re-employ any reservist who was last employed by it in the four-week period before their call-up. Re-employment should be in the same job and on terms and conditions no less favourable than those which would have applied had there been no call-up. If reinstatement is not reasonably practicable, the employee must be offered the most favourable terms and conditions that are reasonably practicable in the circumstances.
Further information and government guidance on employing a member of the reserve armed forces is here.