called up for the Olympics

By calling out 13,500 military troops to provide security at the Olympics, Parliament is almost doubling its previous estimation. A number of these troops will be drafted from the reserve forces. There are different types of reservists, but most likely it will be members of voluntary reserve forces such as the Territorial Army affected by the mobilisation order. The large majority of reserve forces have full time employment, which therefore raises some pertinent employment issues.

The recent call-out notice for the Olympics follows a recent amendment to the law[1] allowing reservists to be called out when there is 'urgent work of national importance'. Prior to this, reservists could be called out for:

national danger, great emergency or attack on the UK
warlike operations or
humanitarian/natural disasters.

This amendment significantly widens the scope of when reservists can be deployed.

The study 'Future Reservists 2022' envisaged the amendment will enable the use of reservists to assist during extreme weather, accidents or security incidents; and to support high profile national events, such as the Olympics.

The increase in use of reserve forces means employers and employees need to know their rights and obligations when a call-out notice is received. What follows are the options available.

1. object

The employer, if an employee's absence will mean serious harm to the business or a related business, has a right to seek exemption, deferral or revocation. To do this, the employer must apply to the person specified in the call-out notice within seven days of notice being received. If dissatisfied, the employer can apply to a Reserve Forces Appeals Tribunal.

The reservist may also object by following the same procedure if they have primary parental or care responsibilities; are engaged in full time education; are self-employed and their deployment would seriously harm business; or for some other compassionate reason.

2. contract of employment ceases and is re-instated upon reservist's return

The law surrounding what happens to an employee's contract of employment whilst they are on deployment is uncertain. The Reserve Forces (Safeguard of Employment) Act 1985 (RF(SE)A) protects reservists in two ways. Firstly, it is illegal to dismiss a reservist because of their reservist status. An employer could face criminal penalties for doing so.

Secondly, the reservist's job role is safeguarded during deployment. Wording in the act such as 're-instatement' and 'former employer' implies that the contract of employment is terminated on deployment and re-instated once the reservist returns. This is important as it dictates what rights and obligations remain during deployment.

The RF(SE)A places an obligation on the employer to re-instate the reservist to the same or 'most favourable' job role and on the same or 'most favourable' terms and conditions. This obligation lasts for either 13, 26 or 52 weeks after re-instatement depending on the length of service of the reservist before deployment. This is an onerous obligation on the employer but a strong protection for the employee.

The rights and obligations under the contract of employment do not continue during deployment. The reservist's right to return to the job is protected with continuity of employment preserved, but as such there is no right to accrual of annual leave or other such benefits. This Act applies even if the reservist is on a short term call-out for example providing security at the Olympics.

3. the contract of employment continues whilst the reservist is deployed

By continuing the contract, the employer does not have the same obligations under the RF(SE)A. If the contract of employment is ongoing but the reservist is made redundant whilst still away, the reservist can still apply for re-instatement under the RF(SE)A on their return.

If the contract of employment does continue while the reservist has been deployed, benefits such as holiday pay and continuity of employment will continue to accrue. Subject to terms and conditions, benefits such as permanent health insurance and death in service policies may also continue, which are risky if the reservist is deployed to a hostile environment. The benefits and drawbacks for the employee are the reverse to that of the employer.

practical considerations

The law is unclear and it is therefore important to have an unambiguous reservist policy in place. This is especially true following the widening of power to call-out reservists. The legal uncertainty stems from a lack of case law, which is unsurprising since it would be taboo to dismiss a reservist who has just fought for their country. Would this apply to a reservist away from work to provide security for the Olympics?

Employing reservists is not all bad news for employers, whilst on deployment or during training they acquire skills that are valuable and transferable to a business. There are also ways for an employer to obtain financial assistance when a reservist is called-out.