What are military reservists?

The Defence Secretary has confirmed that a new ‘COVID-19 Support Force’ is being created to help in the response to coronavirus by assisting public services. This Support Force will be made up of British military personnel, including “military reservists”, from the Royal Marines, Royal Navy and Army Reserve.

Military reservists are individuals who give up their free time to train alongside the regular armed forces. They are called upon to supplement the regular forces when required, such as during the flood relief in 2014, the Grenfell Tower relief effort in 2017, and now, the COVID-19 pandemic. Reserve duty is comparable to a part-time job that enables individuals to keep their civilian career. This means that many military reservists have full-time careers in other industries.

How do we know if an employee is a military reservist?

Anyone becoming a military reservist is encouraged to inform their employer that they have done so. Even if the reservist does not tell their employer, they are required to provide their employer's details to their commanding officer. The MoD will, in almost all circumstances, then notify the employer that its employee has become a reservist. Similarly, when a reservist changes jobs they are asked to provide details of their new employer who will then receive an MoD notification. This means that employers will almost always be aware which, if any, of their employees are reservists. In addition, an employer may wish to make specific provision in its contracts that employees should disclose that information to the employer.

Employer obligations

The three main issues that employers should be aware of in respect of employees who are reservists. These are as follows:

Training

Military reservists have to attend training. Employers are not obliged to provide any time off work for an employee to attend training. Some employers may allow employees to take unpaid leave to attend their annual training (or any other training, if this conflicts with their normal working hours). However, in the absence of employers making specific provision, employees must use their annual leave to attend training during their normal working hours.

Mobilisation

Reservists are liable to be mobilised for potentially long periods of time. The MoD aims to give at least 28 days' notice of mobilisation, but this is not guaranteed. If an employer believes that the mobilisation of an employee will cause serious harm to its business, it may apply for a call-out notice to be deferred, revoked or for an exemption to be made for the particular reservist. An adjudication officer may grant an employer's application if they are satisfied that the absence of the reservist would cause serious harm to the employer's business The adjudication officer will also take into account, inter alia, the purpose for the call-out.

Return to Work

Reservists have a right to return to work on demobilisation. Employers should be aware that the reservist's right is to be re-employed in the type of job they previously held (if possible to their former role and, if that is not possible, to a mutually acceptable role), on terms and conditions which are no less favourable and for a minimum period.

Pay

Do employers need to pay an employee who is a reservist and has been mobilised?

No. Reservists are paid service pay while they are mobilised and employers do not need to continue paying them their salary during this time. Employers who chose to do so will not be reimbursed. The MoD will make up the difference (if any) between a reservist's service pay and their regular pay.

Employers can also suspend any occupational pension contributions during the reservist's mobilised service. In this case, the state will make the employer's contributions into the pension scheme, as long as the reservist continues to pay any contributions required of them.

Are we entitled to any financial assistance in respect of employees who have been mobilised?

Yes. Employers are entitled to claim a number of payments, referred to as awards, in respect of an absent reservist. These awards, governed by the Financial Assistance Regulations 2005, and are intended to cover the additional replacement cost and other associated costs borne by the employer as a result of the reservist's mobilisation.

The payments that an employer may claim cover:

• Employer's award. This covers the cost incurred by the employer, to the extent that it exceeds what it would have paid the reservist by way of salary (and is subject to a cap of £110 each day)
• Replacement award. This is the cost of training a replacement that is necessary for them to be able to do the reservist's job (up to a maximum of £2,000)
• Handover award. This covers the cost of employing a replacement at the same time as the called-up reservist (that is, both before the commencement of their service and afterwards), in order for relevant matters to be handed over from the reservist to the replacement and then from the replacement to the reservist. The award is calculated with reference to the daily rate of pay received by the reservist's replacement (capped at £110 per day) during the handover multiplied by the number of days on which the handover was conducted. An employer can claim for up to five days before the reservist's service and up to five days afterwards.
• Clothing award. The cost of providing specialist clothing required by the reservist's replacement (up to a maximum of £300, or 75% of the costs of the clothing, whichever is less)
• Training award. This is the cost of any training required by the reservist once they return to work following their mobilisation.
• Employer Incentive Payment. This is available for employers with less than 250 employees and an annual turnover of less than £25.9 million. The payment is made for each month of a reservist's mobilised service and is calculated in accordance with a formula set out in regulation 3 of the Reserve Forces Payments Regulations 2014.

Employers should be aware of the timescales for making such claims. With the exception of a claim for a training award, which must be made within eight weeks of the reservist completing the relevant training, an employer's claim for financial assistance must be made no later than four weeks after the reservist finishes their mobilised service.

Avoiding mobilisation

Can we dismiss a reservist in anticipation of mobilisation?

This is certainly not advisable due to the severe penalties which can be imposed for doing so. An employer who terminates the employment of a reservist solely or mainly on the grounds that they may be mobilised in future is guilty of a criminal offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale (currently £1000). The court by may also order an employer to pay the employee, as compensation for any loss suffered or likely to be suffered by reason of the termination, a sum not exceeding an amount equal to five weeks' remuneration.

Additionally, such a dismissal will likely also result in a claim for unfair dismissal and employers should bear in mind that there would be no qualifying period for an unfair dismissal claim in such a case.

Guidance

Where can we obtain further guidance?

• The Ministry of Defence (MoD) has set up an online resource which provides advice and support for those employing members of the armed forces community, including reservists.
• Government Advice: Rights and responsibilities for employers and reservists
• Lexis Nexis

If you have any questions on this or are looking for any further employment advice in relation to Covid-19, please contact our team today.

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