Legal Article - Employment Law

Reserve Forces (Safeguard of Employment) Act 1985

The Reserve Forces (Safeguard of Employment) Act 1985 says that members of the reserves and auxiliary forces who are called to active duty have a legal right to reinstatement in their previous employment.

Continuity of employment is preserved although the actual period of absence does not count for accrual purposes for holiday entitlement and other benefits. Nor is the employer obliged to pay salary during the absence.

The employer must not dismiss an employee before the date on which they are required to attend for whole time service, for a reason arising from the employee’s call out.

The applicant must make an application for reinstatement to the former employer in writing by the third Monday after the end of whole-time service, unless there is a good reason preventing them from doing so (e.g. ill-health).

Not later than the sixth Monday, the applicant must tell the employer in writing the date of availability for work, which must be within the following six weeks. Applications have to be renewed in writing every 13 weeks.

The former employer has an obligation to take the applicant into employment at the first opportunity once notified of their availability. The applicant should be taken into employment in the occupation in which they were employed prior to the “call-up” and on terms and conditions comparable to those, which would have applied, had there been no call-out, unless it is not reasonable and practicable.

A reinstated employee has the right to remain in employment for a specified minimum period, depending on their previous service as follows
 
• Less than 13 week’s service: at least 13 weeks employment
• More than 13 but less than 52 week’s service: at least 26 weeks employment

• More than 52 week’s service: at least 52 weeks employment.
An employer is not required to reinstate an applicant if it means dismissing another person who has longer service that the applicant. Otherwise the applicant must be reinstated and the other person dismissed.

The statutory right to reinstatement is only applicable where the whole-time service is a consequent of an Order from the Ministry of Defence authorising call-out. This Act does not cover service in the Territorial Army. Any time-off for the latter is entirely at the employer’s discretion.

Under the Reserve Forces Act 1996 a new High Readiness Reserve of 3000 specialists has been formed who can be called up for any reason at short notice. However, an employee may only join the Reserve with their employer’s consent. Where this is given then the following applies:

• Reservists may be called up for tasks other than national emergency, such as peacekeeping and disaster relief

• The government will top up reservist’s pay to their usual earnings

• The government will compensate employers for costs incurred in replacing reservists, such as the cost of temporary staff.

Published: 27 May 2011

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