Firms warned to hold fire as staff face call-up to Gulf

GARETH BRAHAMS AND KATHERINE O'BRIEN DISCUSS THE IMPLICATIONS OF ABSENCES OWING TO CONFLICT

With the imminent threat of military action in the Gulf, law firms face losing the services of staff.

An employer cannot refuse to release employees who have been served with their call-up notices.

Employers who induce a reservist to desert or be absent without leave are guilty of a criminal offence.

It is also an offence to dismiss employees prior to call-up because of the risk that they may be called-up.

However, employers are allowed to apply to an adjudication officer to have the call-up deferred or revoked on the basis that loss of the employee's services will cause serious harm to the business which cannot be prevented through financial assistance.

'Serious harm' can include loss of sales, markets, reputation or goodwill, and an impaired ability to provide services.

If employees are absent from work on military service, the employer is not under an obligation to pay employees their civilian salary or benefits.

The reservist will receive service pay and a 'standard award' which covers some of the difference between service and civilian pay.

In addition, the Ministry of Defence will cover the employer's pension contributions and pay a sum equivalent to any payment the employer would make in respect of benefits.

The Reserve Forces (Safeguard of Employment) Act 1985 gives reservists the right to approach their former employer for reinstatement to their old jobs.

It does not matter how long the service has lasted and this right is available up to six months after the end of the service.

Reservists are to be taken back in the same job and on terms and conditions no less favourable than those that would have applied had there been no call-up.

If that is not reasonable and practicable, then reservists must be offered the most favourable occupation on the most favourable terms and conditions which are reasonable and practicable.

Failure to comply can result in a fine of up to 1,000 and, more importantly, an order for payment of compensation to the reservist for loss suffered of up to the amount that the reservist would have received had he been reinstated.

Gareth Brahams is a partner and Katherine O'Brien a trainee in the employment department of City firm Lewis Silkin