Mobilisation of the reserve forces

1. Background

Mobilisation is the process of calling Reservists into full-time service with the Regular Forces, in order to make them available for military operations.

The Reserve Forces Act 1996 (RFA 96) provides for three main powers under which mobilisation of the voluntary reserve forces can take place:

1. If it appears that national danger is imminent or a great emergency has arisen or in the event of an actual or apprehended attack on the United Kingdom (Sections 52 (call-out) and 68 (recall)).
2. If it appears that warlike operations are in preparation or progress (Section 54), e.g. Bosnia, 1995-96.
3. If it appears necessary or desirable to use Armed Forces on operations outside the United Kingdom for the protection of life or property; or on operations anywhere in the world for the alleviation of distress or the preservation of life or property in time of disaster or apprehended disaster, (Section 56), e.g. The Balkans.

On 7 January 2003, The Secretary of State for Defence made an order under s.54(1) of the RFA 96.

Section 54(1) of the RFA 96 states that "the Secretary of State may make an order authorising the calling out of members of reserve force if it appears to him that warlike operations are in preparation or progress"

This order therefore enables the call-up of reserve forces for possible military action against Iraq.

2. Employers Statutory Rights and Obligations

Where a call up notice has been issued, an employer cannot refuse to let an employee go.

A reservist who fails to comply with such an order would be guilty of absence without leave or desertion under s96 of the RFA 96.

An Employer (or any other person) who tries to induce a reservist to desert or be absent without leave is also guilty of an offence under s101.

Section 101 states:

"A person who in the UK or elsewhere by any means

• Procures or persuades, or attempts to procure or persuade, person liable for recall to commit an offence of desertion or absence without leave;
• Knowing that a member of a reserve force is about to commit such an offence, aids or assists him in so doing; or
• Knowing a member of a reserve force to be a deserter or absentee without leave, procures or persuades or assists him to remain a deserter or absentee, or assists in his rescue from custody is guilty of an offence"

Section 101(3) sets out that if found guilty of such an offence the employer (or any other person) would be liable on summary conviction to:

• Up to 6 months imprisonment and/or a fine not exceeding £5,000 on the standard scale where the offence involves a deserter; or
• A fine not exceeding £5,000 where the offence involved an absentee without leave.

Continuation of pay under the contract of employment

An Employer does not have to continue to pay the reservist his or her normal salary. The reservist will receive service pay from the Ministry of Defence.

Rights of Employers under the RFA 96

Under RFA 96:

• The Employer of a Reservist who is to be mobilised is entitled to seek exemption from, or deferral of, mobilisation if it is thought that the loss of the employee will cause serious harm to the business.
• The Employer may seek exemption if their employee's absence would cause serious harm to any other business or undertaking of a partner, proprietor or employee of that business or undertaking
• The Employer may also apply for financial assistance.

3. Exemption and Deferral

As stated above if the impact of losing a member of staff who has been compulsorily mobilised would be exceptionally difficult for an Employer, they can apply for exemption, or in some cases, deferral.

Grounds for exemption

To obtain exemption, an employer must be able to show that the absence of the Reservist would cause serious harm to the business or undertaking in which the Reservist is employed, or to a partner, proprietor or employee of that business or undertaking.

Although the definition of serious harm will obviously vary, Schedule 1 (2) of the Regulations specifically state that harm may include:

Serious loss of sales, markets, reputation, goodwill or other financial harm.

Impairment of the ability to produce goods or provide services.

Harm to research and development of new products, services or processes which could not be prevented by the employer being given financial assistance under the Reserve Forces (Call-out and Recall) (Financial Assistance) Regulations 1997.

Making an application

Applications for exemption must be made within 7 days of the Reservist being served with a mobilisation notice.

If the application is not made within those 7 days, permission to make a late application must be obtained from the Adjudication Officer.

In order to make an application the Employer will need to provide as much information as possible about the Reservist who is being mobilised. This information should include name, address, payroll number and National Insurance number, but the Regulations also require the employer to provide information about:

the business in which the Reservist is employed in

the role that the Reservist performs

the effect that their absence will have should they be called out

the grounds for exemption in terms of serious harm to the business

Determination of applications

An Adjudication Officer will determine applications for exemption.

4. Financial Assistance and Company Pension Schemes

Financial Awards Available
The Reserve Forces (Call out and Recall)(Financial Assistance) Regulations 1997 provide for four types of financial award, which an Employer can apply for irrespective of whether the Reservist has been compulsorily or voluntarily mobilised. In order to claim, appropriate supporting documentary evidence must be provided.

Employers Standard Award

An employer shall, subject to the adjudication officer's satisfaction after being provided with relevant information and documents be entitled to an employers standard award.

This award is made up of two elements:

1. Initial Replacement
This award is for actual net additional costs, within distinct limits, and covers the initial one-off costs such as advertising for, and interviewing, replacement staff. The upper limit is 6% of the employee's annual salary, or £2,400 (whichever is the least).

2. Ongoing Administration
This is for actual net additional recurring costs such as agency fees and overtime during the employee's military duty. The upper limit is set at 4% of the weekly rate of salary or £31 per week; (whichever is the least), multiplied by the number of weeks of military duty.

Hardship Award

In addition to the Standard Award, an Employer may be eligible for a Hardship Award, if the Standard Award is insufficient to meet the actual costs incurred. Generally to qualify the Employer would need to show costs amounting to at least one and a half times the total of the Initial Replacement costs (i.e. at least £3,600) and/or the Ongoing Administration costs (i.e. at least £46.50 per week) admissible under the Standard Award to be considered for a Hardship Award.

Retraining award

An employer shall be entitled to a retraining award provided:

The adjudication officer is satisfied of the need after the employer has provided relevant information and documents.

The employer notifies the adjudication officer no later than 4 weeks after the date on which the reservist resumes employment with him that he intends to claim a retraining award.

The claim is not made more than 8 weeks after the date on which the reservist resumes work with the employer.

This award is intended to cover any re-training costs, incurred when the employee returns from mobilised military duty and is required to regain or renew any standards of competence or qualifications. The award will be based on actual expenditure incurred, up to a maximum of £2,000.

Pension Provision

A Reservist who is called out is entitled to remain a member of his occupational pension scheme. In such cases, the MOD will pay the employer's pension contribution, provided the individual continues to pay the employee's element. (Regulation 16 of The Reserve Forces (Call out and Recall)(Financial Assistance) Regulations 1997 provides that the pension scheme administrator cannot refuse to accept MOD payments.)

5. Appealing against an adjudication officer's decision

If the Employer is dissatisfied with an Adjudication Officer's decision on an application for exemption, deferral or financial assistance they can appeal for a hearing by an Independent Reserve Forces Tribunal through the Tribunals Secretary.

Tribunals are independent from the Ministry of Defence, with appointments made by the Lord Chancellor. The chairmen and members normally hold similar posts in the Employment Tribunals Services of England, Wales, Scotland or Northern Ireland.

Appeals must reach the Tribunals Secretary within 5 days of you receiving written notice of the decision.

If the appeal is to be delayed by matters outside the employers control, a written explanation for the delay must be attached to the Form of Appeal.

6. The Reserve Forces (Safeguard of Employment) Act 1985

The Reserve Forces (Safeguard of Employment) Act 1985 (SOE 85) provides protection for a Reservist by making it unlawful for you to terminate an individual's employment without their consent solely or mainly because they have a liability to be mobilised.

The Reserve Forces (Safeguard of Employment) Act 1985 (SOE 85) has been amended by Section 122 of the Reserve Forces Act 1996 (RFA 96) and by Statutory Instrument 1998 no. 3086, Regulation 10(4).

The Act, as amended, provides two types of protection - reinstatement for those called out (s1) and protection of employment for those liable to be called out (s17). In certain circumstances, it also provides for compensation (within s8 to 11 and s18).

Protection of Employment
If an employer terminates a person's employment without their consent, and does so solely or mainly by reason of a liability to be mobilised for military service, the employer is guilty of an offence (s17), and the Court may order the employer to pay compensation (s18), as well as levying a fine (s17).

Reinstatement
The Act gives a mobilised reservist the right to be reemployed in the same job or if this is not reasonable or practicable to be offered the most favourable alternative employment by his former employer after demobilisation.

Section 7 of the 1985 Act, provides that a reservist must be reinstated for at least a period of 26 weeks, however:

If the reservist had 52 weeks of continuous service before being called up the employer must reinstate that reservist for at least 52 weeks.

If the reservist had less than 13 weeks continuous service before being called up the employer need only reinstate the employer for 13 weeks.

Any application for reinstatement must be made within 6 months from the end of the applicant's Reserve Service.

The Reservist or someone acting with his authority must write to the employer within the period between the demobilisation date and the third Monday after that date asking for reinstatement to their former job.

If, owing to sickness or other reasonable cause, the Reservist is prevented from making the application until after the expiry of the third Monday after the demobilisation date, he/she must write as soon as reasonably possible after that third Monday.

The Reservist or someone acting with his authority must also write to the employer at the same time, or within 21 days of the third Monday after demobilisation, to give the date on which they will be available to go back to work

The date of availability to return to work must be no later than the 21st day after the third Monday after demobilisation. However if, owing to sickness or other reasonable cause, the Reservist is not available for work until after the expiry of the 21st day, they must write to the employer, notifying an alternative prospective start date as close as reasonably possible after the 21st day.

If the employer offers the Reservist alternative work, and the Reservist is dissatisfied with the alternative offer, the Reservist must inform the employer immediately in writing, stating the reason(s) why there is reasonable cause not to accept the alternative offer made.

If the Reservist believes that the employer response to that submission denies his/her rights, an application can be made to a Reinstatement Committee for assessment. The Reinstatement Committee will consider the Reservist's application and, if accepted, will make order for reinstatement and/or compensation.

There is an appeal procedure against the decision of the Reinstatement Committee and, subject to any prescribed time limit, further appeal may be made to an Umpire.

However where an employer does not conform to an order made by the reinstatement commitee, the Reservist can go to a Magistrates' Court for payment or compensation

7. Length of Mobilisation

The maximum period of mobilisation depends on the power used under RFA 96 and on the scale and nature of the operation.

A period of mobilisation contains three distinct phases: pre-deployment training dependent on the nature of the conflict, the operational tour itself and post-tour leave.

The Support for Reservists and employers website states that the Services are moving towards the more flexible use of Reservists and operational tours currently range from short tours of 3 months or less, up to a maximum of 12 months in total.