Understand the basics of the Working Time Regulations in the UK, working hours trends, holidays and special leave.
A white paper, Reserves in the future force 2020: valuable and valued, published in 2013, contained a range of measures aimed at increasing the UK’s reserves across all three services and giving more support and incentives to reservists, their families and employers. The resulting ‘Future Reserves 2020 (FR20)’ programme has increased the total reserve strength.
Further guidance can be found in the Government’s Reservist employment toolkit.
There are both ‘regular’ and ‘volunteer’ reservists in the armed forces which, for these purposes, include the Royal Navy, Army and Royal Air Force.
Regular reservists are former full-time service people who may be still liable for service under certain circumstances once they have left the regular forces.
Volunteer reservists are members of the Royal Naval and Royal Marines Reserves (the Maritime Reserves), the Army Reserve (formerly the Territorial Army) and the Royal Auxiliary Air Force. They train and serve alongside the regular forces during their spare time, but they may also be called up (mobilised) for a period of full-time service.
When reservists can be mobilised depends on when they joined.
Rule changes in 2014
Reservists joining before 1 October 2014 can only be mobilised in certain circumstances, for example, in response to imminent national danger, if warlike operations are in preparation or progress, or for the protection of life and property outside the UK. They can choose whether to transfer to new terms applying to reservists joining on or after 1 October 2014.
Reservists joining on or after 1 October 2014 can be called out for any purpose for which members of the regular armed forces may be used. From that time the maximum period for which reservists may be mobilised increased from nine to 12 months. The 12-month period of mobilisation covers training, deployment, and recuperation after service.
For more information, see Defence Reform Act 2014 (Part 3), and Regulations for the Mobilisation of Reserved Forces.
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An employed reservist will give the employer’s details to their commanding officer in the Ministry of Defence (MOD) and the employer will usually get a letter from the Ministry of Defence within five weeks of an employee signing up. (The MOD doesn’t inform Northern Ireland employers, but reservists still need to give details of their employer to their commanding officer).
When an existing reservist changes jobs, their commanding officer will inform the new employer.
The MOD’s Defence Relationship Management (DRM) team can provide advice and support on all aspects of employing reservists and acts as a point of contact linking employers with the MOD. DRM recommendations for employers include:
- Speaking to reservist employees to find out their basic training commitments and dates of annual camp.
- Ensuring all policies accommodate and support participation in the Volunteer Reserve Force.
- Using the DRM example reservist human resources policy.
- Joining the companies that have pledged support by signing the Corporate Covenant.
- Consider applying for Bronze/Silver/Gold award under the new defence Employer Recognition Scheme launched in July 2014.
Larger employers may wish to discuss their support for reservists and other defence communities with the DRM Regional Employer Engagement Directors.
Many UK employers have signed up to the Armed Forces Covenant where they show willingness to engage and support reservists.
Employers of reservists should also bear in mind:
- Three months before the start of the training year, employers should be told dates of the key training events that their employees are expected to attend.
- Army reservists are required to train from 35 to 40 days a year. This is usually provided over one evening a week, several weekends a year and via a block of 15 days each year. There is no statutory requirement for employers to provide paid or unpaid time off for a reservist’s training period. However, the MOD
- Encourages employers to provide extra leave for at least the annual 15 days of the reservist continuous training camp. Some employers require reservists to take this time from their annual holiday entitlement.
- There is no qualifying period of employment before reservists have access to employment tribunals for unfair dismissal claims (see the Reserve Forces (Safeguard of Employment) Act 1985 which also provides that it will be a criminal offence to terminate a reservist's job solely because they have a liability to be mobilised).
- Employers should be told about the timing of mobilisations and be given notice of when they occur.
- For short-notice operations there is at least 28 days’ notice.
- For a major disaster or emerging crisis, there is no minimum notice period.
- Either the employee or the employer may apply to the MOD to delay or cancel mobilisations, for example, if several reserve employees from one employer are called up at the same time.
- Reservists will also have access to a Standard Learning Credits (SLC) scheme which provides some financial support for short-term learning activities and allows the claimant to claim £175 towards the cost of the courses per financial year.
The Employer Notification procedure means that reservists must give permission for the Ministry of Defence to inform their employers that they are members of the Reserve Forces (employers of existing reservists who renew their commitment should be contacted as well). All employers should be on notice that their reservist employees may be called out and mobilised.
Shortly after the employee gets a call-out notice, the employer will receive an information pack including various information (for example, a copy of the official call-out notice, the dates and possible duration of the mobilisation, details of employers’ statutory rights and obligations and information about exemption, deferral and revocation of mobilisation and details of financial assistance).
The Ministry of Defence aims to issue call-out papers with at least 28 days’ notice before the reservist is required, but there is no legal minimum notice period. Some reservists (known as High Readiness Reservists [HRR]) have to be available to be deployed with seven days’ notice. They may therefore need to be released from employment on short notice. If a reservist has a regular job and works more than two hours a week, they will require the employer’s written consent before they can hold High Readiness status. This consent is renewed annually.
In practice, reservists should communicate with their employers at an early stage so absence cover can be arranged. Both employers and reservists can, however, appeal against the mobilisation.
Exemption, deferral, revocation and appeals
Once called out, reservists or their employers can seek deferral of, or exemption from, call-out or recall under the Reserve Forces (Call-out and Recall) (Exemptions Etc.) Regulations 1997. Applications will be to defer for up to a year, to obtain exemption for a year or more, or to cancel or revoke a mobilisation already issued.
The key provisions from an employer’s perspective are:
- The person is involved in education or training which is intended to prepare or qualify them for a vocation or job and such training would be seriously disrupted by absence on service leave.
- They are employed in a family-owned business that would suffer serious harm as a result of the absence.
- The person has entered into an employment contract and the employer refuses to postpone the start date.
An employer may apply for an exemption, deferral or discharge if the absence for the period of service would cause serious harm to the business. This includes loss of sales, market, reputation or other financial harm, impairment to produce goods or to research and development of new products and services. This is provided that the financial harm could not be prevented by the employer being given financial assistance under the Reserve Forces (Call-Out and Recall) (Financial Assistance) Regulations 2005 and the Reserve Forces (Payments to Employers and Partners) Regulations 2014 (which cover financial assistance for reservists and their employers).
Both the employers and reservists appeal against the mobilisation which should be done within seven days of service of the call-out notice. Within those seven days, the employer can apply to an adjudication officer to have the call-out deferred or revoked. There is a right of appeal to an independent tribunal if the application is refused. Reservists themselves can also apply for exemption, deferral or revocation of mobilisation, and should do this within seven days of the call-out papers being served.
Payments can be made to reservists and their employers under the Reserve Forces (Call-Out and Recall) (Financial Assistance) Regulations 2005 (SI 2005/589), the Reserve Forces (Payments to Employers and Partners) Regulations 2014 (SI 2014/2410) and the Reserve Forces (Call-Out and Recall) (Financial Assistance) (Amendment) Regulations 2015 (SI 2015/460). They are designed to ensure that neither employer nor reservists suffer financial detriment due to mobilisation.
Payments can be made to help meet the costs that reservists and employers may incur when reservists are called out or recalled for permanent service. Financial loss could occur for reservists where they have earnings in civilian life that are greater than their service pay when mobilised. However, financial assistance can be provided which allows for making up the difference between civilian and military pay.
Financial assistance for reservists
Reservists whose civilian pay is higher than their service pay will receive an additional payment to make up the difference between the two.
Reservists will also be able to claim the cost of benefits lost on mobilisation and awards and expenses, including:
- health insurance
- company car
- children's school fees
- costs associated with childcare
- costs of the care of dependent relatives
- costs for care of a pet
- cost of any accommodation formerly paid by the employer
- amount of employer’s pension contributions suspended during mobilisation. Alternatively, the reservist can make contributions to the MOD pension scheme during mobilisation
- extra insurance for leaving their own home empty
- reduced council tax payments
- costs of essential maintenance on their home.
Specific Jobseeker’s Allowance rules apply for reservists and a claim can be kept open while a reservist is on their annual training as they will be treated as available for employment and actively seeking it. They are expected to meet the same job seeking and availability conditions as others on Jobseeker’s Allowance.
Reservists may also qualify for Universal Credit to help pay for housing costs.
Financial assistance for employers
All military reservists called up for active service are paid directly by the Ministry of Defence. Employers do not have to continue paying an employee who is mobilised, and will also be able to claim financial assistance to cover both the additional costs of replacing the employee and certain one-off costs.
Examples of other financial assistance may include:
- overtime for other employees to cover the work of the reservist
- costs of hiring a temporary replacement
- travel, accommodation or subsistence payments if an employee from another area is transferred to cover the work of the reservist
- agency fees to find a temporary replacement
- advertising costs to find a temporary replacement
- training costs needed by the reservist as a result of having been mobilised following their return
- five days of handover costs before the reservist employee is mobilised, and five days of handover after they return to work (subject to a financial cap)
- the ability to reclaim of up to 75% of the costs of specialist clothing for the person who replaces a mobilised reservist (a spending cap applies).
The Ministry of Defence has encouraged employers of reservists to claim back any costs when a member of staff is mobilised for full-time service. Different time limits apply according to the type of cost.
Special provisions provide for benefits to be payable to reservists and regular members of the armed forces in respect of illness, injury or death caused (wholly or partly) by service in the armed forces or the reserve forces.
Reservists may choose to continue with their civilian pension scheme while they are mobilised. Under the Armed Forces Pension 2015 scheme, a reservist’s pension will be based on all days of paid service including training and mobilisation days.
The mobilised reservist must opt out if they want the Ministry of Defence to pay the employer contributions into their own occupational pension scheme.
Can an employer appeal a reservist’s mobilisation?
Ideally an employer will know if a reservist has been mobilised, by both informal discussions with the employee and by the receipt of a formal call-out notice. The call-up of reservists into service alongside the regular armed forces is referred to as ‘mobilisation’.
Reservists joining on or after 1 October 2014 can be called out for any purpose for which Regulars may be used.
Those who joined before 1 October 2014 can either choose to be called out for any purpose where members of the regular armed forces may be used, or they can stay on their original terms. According to the Reserve Forces Act 1996, this means they can be called out for full-time service in an emergency or in the event of:
- imminent national danger, great emergency or apprehended attack on the UK (section 52(1))
- warlike operations appearing to be, or actually being, in preparation or progress (section 54(1))
- it being desirable or necessary to use armed forces on operations outside the UK 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(1))
- it being desirable or necessary to use armed forces for urgent work of national importance (section 56(1A)).
A reservist can only be mobilised if a call-out order is in place.
Reservists often serve abroad, but can also be deployed in the UK, for example during a national emergency.
Where no call-out notice has been issued, an employer does not have to agree to a request from an employee for leave related to their reservist duties. Where a call-out notice has been issued, the reservist is legally required to comply with it. However, this is subject to the deferral, revocation and exemption provisions set out below.
Do reservists have extra employment protection?
An employer is obliged to re-employ any employee who was last employed by it in the four-week period before being called out. Re-employment should be to the same role and on terms and conditions no less favourable than would have applied if they had not been called out.
If reinstatement is not possible (for example, the role has been made redundant), the employee should be offered the most favourable terms and conditions possible in the circumstances.
Protection from dismissal
Before reservists are mobilised, the Reserve Forces (Safeguard of Employment) Act 1985 provides protection from unfair dismissal on top of the normal right not to be unfairly dismissed under the Employment Rights Act 1996. An employer must not terminate employment because an employee might be mobilised.
In addition, if a reservist is dismissed for a reason connected with their membership of the reserve forces, they can bring an unfair dismissal claim even if they have only been employed for a short period. They do not have to meet the normal two (or one) year statutory qualifying period applicable to most unfair dismissal claims.
What happens if an employer refuses to take a reservist employee back following a period of service?
The reservist can apply to a Reinstatement Committee. If the committee is satisfied that reinstatement should have been made, it can:
- order that a position be made available for the period of the employee’s entitlement
- award the employee compensation for any loss suffered caused by the employer’s failure. There is no cap on an award that the committee can make, but it will be made for the purpose of compensating for losses caused. If reservists are high earners, this could amount to a significant sum.
Applications to the Reinstatement Committee must be made in accordance with the Reinstatement in Civil Employment (Procedure) Regulations 1944. Any such application must be made within 13 weeks from the date the reservist requested reinstatement. There is a discretionary power to consider late applications if good cause is shown (see Guidance for reservists returning to civilian employment after mobilised service).
What is the status of an employment contract during mobilisation and what is the effect on continuity of service?
The contract is ‘suspended’ until an application for reinstatement is made. Provided the employee is protected by the Reserve Forces (Safeguard of Employment) Act 1985 and they are re-employed within six months of the end of military service, the two periods of employment will be treated as continuous.
As the status of the contract during military service is an unusual legal concept, a sensible employer should agree the contractual position in regard to specific benefits with any reservist who is called up both during the period of absence and on their return.
Do reservists accrue annual leave while on training or deployed?
Yes. Reservists accrue annual leave entitlement from the Ministry of Defence (MOD) while on annual training, as well as while deployed.
Annual leave from the employer
There is no statutory requirement for employers to give paid or unpaid time off for a reservist’s training period. There is no right to accrue annual leave from the employer while away on military service either.
Employers cannot refuse to allow reservists to go when they are mobilised. Reservists are required to answer call-out notices, but if their absence will cause serious harm to the business employers can apply for an exemption, deferral or revocation of mobilisation.
Training is seen differently. Where no call-out notice has been issued, an employer does not have to agree to a request from an employee for leave. Many employers require reservists to take any time off for training from their annual holiday entitlement.
However, the MOD strongly encourages employers to provide extra leave, especially for the annual reservist continuous training camp.
Army reservists must train between 35 to 40 days a year, and 15 days of this will be on the annual camp.
Annual leave from the MOD
Reservists are given approximately one day’s paid leave for every 10 days of annual official annual training.
When mobilised, reservists will get a period of post-operational leave calculated individually depending on the duration of the deployment. This leave entitlement must be taken after the mobilisation period.
Employers must not force a reservist to return to work before their leave finishes. If the reservist wants to return to work before the end of their leave, they must get permission from either their commanding officer or the demobilisation centre.