Report for the Minister for Home Affairs
Proposal to enact legislation in Jersey equivalent to the Reserve Forces (Safeguard of Employment) Act 1985
Introduction
Major Nick Spratley, OC Jersey Field Squadron, has prepared a paper (attached) recommending that Reservists and Reserves of the Armed Forces, who are resident in Jersey and who are mobilised on active service, should be afforded two types of protection: protection of employment (by making it a criminal offence to dismiss an employee who may be called up to active service on that basis alone) and the right to reinstatement to their job upon return from active service. This protection would align with that afforded to Reservists in the UK under the Reserve Forces (Safeguard of Employment) Act 1985. It should be noted that there is no facility to extend the 1985 Act to Jersey by Order in Council.
Jersey Field Squadron
As Jersey’s contribution to Defence and as part of the Inter-Governmental agreement the States of Jersey provide and maintain a suitable TA centre and accommodation based on an establishment of 98 people, together with all vehicles, weapons and equipment. One of the core tasks of the Jersey Field Squadron (JFS) is to continue to support the Regular Army, as directed. Over 40 members of the JFS have deployed on operations in support of the Regular Army. With the introduction of Future Reserves 2020 (FR20) and the mandate to increase the percentage of Reservists compared with Armed Forces, the trained strength of the Reserves will grow. The JFS are working hard to recruit in line with this strategy. As at the end of December 2012 the JFS was manned to 74% of its TA strength, so has capacity to expand and therefore, more members may expect to be deployed. When compared against all other RE TA Units and Sub-Units for the period from 2007 to end 2012, the JFS ranked 3rd (34% of deployable strength) overall. With the Armed Forces deployed in several conflict zones at the current time, the likelihood of a person who has joined the JFS being requested to deploy on active service is high.
Impact of deployment
Reservists are expected to commit to up to six months’ deployed service, plus pre-deployment training in a five year period. This may mean that they are unable to work in their usual employment for up to 11 months in total during the five years.
It is understandable that local reservists whose employment is not protected may be reluctant to deploy for fear of losing their position on return from active service, particularly in the current financial climate. However, it is also understandable that the loss of a staff member for up to 11 months may be disruptive, particularly in a small enterprise, and some employers may be reluctant to hold open the post. This may be less onerous for larger employers, such as the States of Jersey, which has a policy on special leave which applies to all employees of the States of Jersey (excluding teachers). Special leave may be granted to public sector employees who are either Reservists or Reserves. The policy states:
- The employee’s post will be held open for him / her to return after completion of active duty
- The individual will be paid, so that the total received from the Armed Forces and the States of Jersey will match his / her normal pensionable pay (i.e. basic or consolidated pay plus any pensionable allowances) and there will be no compensation for the loss of overtime earnings
- Contributions to the pension fund from the employee and employer will continue, so that the full period of active duty is included for pension purposes
- Payments to the employee by the States of Jersey will be made in the normal way. If the individual is normally paid cash, they will be encouraged to open an account, or cash will be paid to a nominee chosen by the employee concerned.
- Officers who may, under their public service contract, have an income from private earnings (e.g. medical consultants), will lose all such earnings. Although it is accepted that they will suffer financial loss, the States of Jersey will not be expected to compensate them for such losses. In the same way, no compensation is offered for overtime working that might have otherwise been expected to be worked by other employers
In the UK, employers may claim for any financial loss that they incur as a result of an employee deploying on active service under Regulations made pursuant to the Reserve Forces Act 1996 (‘the 1996 Act’): the Reserve Forces (Call-out and Recall) (Financial Assistance) Regulations 2005 (‘the 2005 Regulations’). Under Regulation 6 an employer may claim up to a maximum of £110 per day in relation to any replacement costs incurred by the employer that exceed the relevant earnings of the reservist. They can also claim costs for advertising or paying agency fees for replacement staff; pension contributions and essential re-training costs when the employee returns from active duty. The reservists themselves have their salary met by the MoD. There is a permissive extent clause within the 1996 Act, so it could be extended to Jersey.
The MoD has recently closed a consultation paper on the Future Reserves 2020: “Delivering the Nation’s Security Together”. In the green paper they set out the increased role that the Reserve Forces will have in the future and acknowledge the impact that this will have on employers. The proposals in relation to employers are grouped into three themes:
- Improving and managing the relationship between Defence, the employer and the reservist
- Minimising the impact of mobilisation and deployment; and
- Developing mutual benefit through reward, incentives and skills development
In addition to the non-financial benefits that employers may get from employing reservists, (i.e. they may have first aid qualifications, HGV licences or leadership skills), the government suggests incentivising employers who employ reservists by offering an additional financial award (in addition to that already provided under the 2005 Regulations) which would be targeted where the need is likely to be greatest, specifically small and medium size enterprises. Australia operates a similar system through their Employer Support Payment Scheme.
Current Jersey situation
Reservists in Jersey who deploy on active service (and who are not public sector employees) currently have no employment protection. Where possible, one would hope that a discussion would have taken place between the Reservist and the employer at the time of recruitment to the post, or when the employee became a Reservist.
If a Reservist were to return from active service and find that their job were no longer open for them it would be possible under the Employment (Jersey) Law 2003 to bring a claim for unfair dismissal to the Jersey Employment Tribunal who may, if they find the complaint well-founded, make a direction that the complainant be reinstated. However, this would not be conducive to a good working relationship between the employer and the Reservist in the future.
I have conducted a search on the Jersey Law website and have not found an instance of a Reservist in Jersey bringing an action for unfair dismissal.
Before considering the introduction of any form of legislation to protect Reservists in relation to their employment, consultation would need to take place with local employers and other interested parties including, but not limited to:
- Chamber of Commerce
- States Employment Board
- Recruitment agencies
- JACS
- Citizens’ Advice Bureau
- Social Security Department
- Law Officers’ Department
- Jersey Law Society
In the current employment climate the Social Security Department is well placed to nominate ‘advance to work’ or ‘return to work’ people to back fill any vacancies during the period when the Reservist is on active service.
Careful consideration would have to be given, however, to the legal position of any person who backfills for the Reservist and any employment rights that may be breached when the Reservist returns to take up their post again and that person becomes redundant. Any proposition would require input from the Law Officers’ Department.
Recommendation
It is recommended that the Minister requests the Minister for Social Security to take this issue forward.
Executive Officer, Home Affairs
1 February 2013
gov.je