Employment protection for reservists
In July 2013 the Government published its response to consultation on the future of the UK's reserve forces. The Government will implement a number of measures, which it hopes will make employing reservists easier and more attractive.
Perhaps the most significant proposal was the Government's suggestion that it was considering introducing legislation to make it unlawful to discriminate against reservists.
In its response the Government has announced that it will:
- Revise the financial assistance regulations, which provide assistance to employers when reservists are mobilised to ensure support is adequate and appropriate. The consultation showed that many employers consider current levels of financial assistance to be inadequate and the bureaucracy of making a claim to be cumbersome.
- Provide financial incentives to micro, small and medium-sized enterprises (SMEs) when reservists are mobilised by introducing a flat-rate payment of £500 per reservist per month when mobilised, which will be targeted at SMEs on whom the impact of absence to the business is likely to be greater.
- Subject to security considerations, mandate and oversee notification by reservists of their reserve status to their employers.
- Provide better notice of reservists' training and mobilisation to allow employers to mitigate disruption to their business.
Protecting the reservist
Just under half (46%) of reservists responding to the consultation said that they had experienced disadvantage in the workplace because of their reserve service.
However, employers were largely against the introduction of new anti-discrimination legislation to protect reservists on the grounds that it risked penalising supportive employers and may be ineffective.
The Government has concluded that its understanding of the issue is insufficient to take legislative action now without a significant risk of unintended consequences. It has therefore set up a web-based portal to enable it to gather further evidence of alleged discrimination. The Government says this will allow it to follow up individual cases and, if the evidence justifies it, to consider additional measures, including whether to provide additional protection in the next quinquennial Armed Forces Bill.
Reservists are already protected from dismissal solely or mainly on account of any duties they have to undertake. Dismissal for this reason is a criminal offence. Protection exists irrespective of whether formal notification of mobilisation has been given to the employer.
Furthermore, existing legislation provides that continuity of employment will not be broken when a mobilised reservist returns to their employment within six months of demobilisation.
However, reservists cannot generally claim unfair dismissal in an employment tribunal until they have the requisite minimum period of continuous employment. This is one year's continuous employment for those whose employment commenced before 6 April 2012 and two years' continuous employment for those whose employment commenced on or after 6 April 2012. As periods of mobilisation do not count towards continuous employment it can take reservists longer than other employees to gain protection from unfair dismissal.
The Government will therefore legislate to give additional protection to reservists by providing an exemption from the statutory qualifying period for bringing an unfair dismissal claim where the dismissal is by reason of the employee's reservist service. This will allow reservists who have been dismissed for reasons relating to their reserve service to bring a claim for unfair dismissal regardless of their period of employment. The protection will be limited to cases where it is claimed that the reason or principal reason for dismissal is related to the employee's reserve service. It will not apply where a reservist has been dismissed for any other reason, such as capability or conduct.
While some regard the decision not to introduce anti-discrimination legislation to protect reservists as a policy U-turn, it is perhaps better seen as the Government deferring making a decision on this proposal until it has had more time to gather evidence and consider its implications. In the meantime, the ability of reservists currently in employment to claim unfair dismissal will be extended by removal of the qualifying period of service requirement.
Chris Weaver is a solicitor in the employment department at Payne Hicks Beach