“We have a foreign national employee who has been mobilised for military action due to national service by the country of which they are a citizen. As an employer do we have a legal obligation to protect their service?”
Individuals who are members of the reserve forces have, subject to certain conditions, the right to be reinstated by their former employer following a period of whole-time military service (e.g. after mobilisation) under Section 217 Employment Rights Act 1996. These employees also have protection from dismissal if the reason for dismissal is, or is connected with, the employee’s membership of a reserve force. There is no minimum qualifying period of employment to bring a claim for unfair dismissal in these circumstances.
Section 217 ERA 1996 applies to a person who is entitled to apply to their former employer under the Reserve Forces (Safeguard of Employment) Act 1985 for reinstatement. That entitlement applies to a person who is in permanent service under specific provisions of the Reserve Forces Act 1996.
Those provisions of the Reserve Forces Act 1996 apply in respect of service in the ‘reserve forces’, which means:
- the Royal Fleet Reserve, the Royal Naval Reserve and the Royal Marines Reserve (the reserve naval and marine forces)
- the Regular Reserve and the Army Reserve (the reserve land forces), and
- the Air Force Reserve and the Royal Auxiliary Air Force (the reserve air forces)
Section 217 ERA 1996 therefore does not apply in respect of mobilisation to serve in the armed forces of another country such that the employee would not have the right to be reinstated in this situation. Notwithstanding this, it is open to an employer if it wishes to agree that the employee is allowed to take a sabbatical/career break for an agreed period of time. If an employer takes this approach, then it is important that it sets out in writing the terms of the sabbatical/career break e.g. whether employee has continuity of service during the sabbatical/career break and therefore accrues employment rights such as holiday and potentially unfair dismissal protection. An employer may wish to state that there is no guarantee at the end of the career break, the company will be able to offer employment in a role which is the same as, or similar to, the employee’s old role, or indeed that it will be able to offer employment at all, to manage expectations.
As always, this advice is general in nature and will need to be tailored to any one particular situation. As an RMI member you have access to the RMI Legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, contact us at any stage for advice and assistance as appropriate.
Motor Industry Legal Services
Motor Industry Legal Services (MILS Solicitors) provides fully comprehensive legal advice and representation to UK motor retailers for one annual fee. It is the only law firm in the UK which specialises in motor law and motor trade law. MILS currently advises over 1,000 individual businesses within the sector as well as the Retail Motor Industry Federation (RMI) and its members.