Job protection for reservists
Shaun Hogan, solicitor, employment team, at Blandy & Blandy, on a tricky question – or not – for employers.
Defence secretary Philip Hammond is considering legislation to make it unlawful for employers to question job applicants over whether they are, or intend to be, a member of the reserve forces.
The move comes about after the decision was made to reduce the number of regular army troops by 20,000 by 2015 and replace them with reservists by doubling their number over the next five years. With this proposed growth, the defence secretary expressed concern employers may be unwilling to hire those who might be called up to serve their country and the knock-on effect this may have on the attractiveness of becoming a reservist. By making it unlawful for employers to ask whether an applicant is a member of the reserve forces, he hopes potential recruits would not be put off.
Such a change in employment rights would add to the protection enjoyed by reservists under the Reserve Forces (Safeguard of Employment) Act 1985. This includes the right not to be dismissed for being part of the reserve forces and the right to be reinstated upon return from duty. There is concern, particularly among smaller organisations, that increasing the number of reservists and not permitting employers to ask whether an individual is a reservist could adversely affect business.
As the proposal has only just been announced, it is also not clear how the prohibition would work in practice. It may comprise an outright ban on asking pre- employment questions regarding reservist status, or it could be that the wording of the legislation will prevent an employer treating the individual 'detrimentally'. The distinction could be important where the reservist job applicant is unsuccessful. The employer may be able to ask the question, but rely on the defence that the successful candidate had better experience or more relevant qualifications.
If the legislation follows the Equality Act and prevents the individual suffering a detriment, it may become unlawful to pass over an employee for promotion because of service in the reserves.
The change is more likely to be a prohibition on asking the question altogether, similar to the current position with pre- employment health questionnaires.
Assuming the legislation simply prevents the question being asked, enforcement will come down to educating employers and reservists about the change. In the case of the reservists, this might be straightforward, as they could be informed as part of the reservist joining process. There is plenty of anecdotal evidence to suggest that despite protections afforded under the Equality Act, unlawful pre-employment screening on health and pregnancy does occur. Employers may use other means to discover a job applicant's status, such as social networking sites.
It is not clear whether a breach of the legislation would result in a penalty or whether the reservist would have to pursue a claim in an employment tribunal, demonstrating financial loss.
Watch this space.