Reservists - JACS Guide
Guidance note 13 to the EMPLOYMENT (JERSEY) LAW 2003 incorporating Employment (Amendment No. 10) (Jersey) Law 2016
Armed Forces Reservists
This short statement is intended to explain to employers and employees the rights conferred to Armed Forces Reservists by Amendment No. 10 of the Employment legislation and constitutes a guide only. Detailed legal advice should be taken in relation to each individual situation.
The main aims of the Amendment are to:
- Provide protection against detriment and dismissal for armed forces reservists.
- Provide the right to return to the same/equivalent job following the completion of a period of service.
- Make provision for continuous employment.
1. Reservist/Reserve Forces covers: Royal Air Force Reserve; Royal Auxiliary Air Force; Army Reserve; Royal Fleet Reserve; Royal Naval Reserve; Royal Marines Reserve and the Regular Reserve or a person liable to be recalled for service under Part VII of the Reserve Forces Act 1996 of the United Kingdom.
2. Returning to Work
A reservist who intends to return to work following a period of reserve service is entitled to return to the same job (or an equivalent job) that they were employed to do immediately before the reserve service began. The reservist is entitled to retain their seniority and pension rights along with terms and conditions that are no less favorable than those the reservist would have received had they not been absent. NB: the period of reserve service does not break the continuity of employment, however the period of reserve service does not count when calculating employment service under Art 57 of the Employment (Jersey) Law.
Prior to returning to the workplace the reservist must:
- provide their employer with notice of their return in writing;
- give that notice themselves, or it may be given by someone acting on their authority;
- provide that notice during the period that starts with the end of reserve service and extends no further than the 3rd Monday following the completion of the service;* (see below)
- provide the date they are available for work- this should be no later than 21 days after the 3rd Monday of the completion of service.
*Notice given to the employer outside of this period should be accepted if, due to sickness or another reasonable cause, the reservist (or authorized person) was prevented from providing their employer with the notice, as long as they did so as soon as was reasonably possible.
Having received the appropriate notice the employer must reinstate the reservist as soon as is reasonable and practicable on or after the 'available for work date' provided in the notice.
- If the reservist believes there is a reasonable cause for not returning to the work that is available, the employer needs to be advised of this in writing setting out clearly the rationale for such belief.
- If the reservist is unable to return to work within the 21 day period due to sickness or another reason, the reservist should notify the employer of the later 'available for work' date.
- If 6 months has passed since the ending of the reservist's service and there has been no return to the workplace, the employer no longer has to keep a job available for the reservist.
3. Complaints to the Tribunal
A reservist can lodge a complaint with the Tribunal if the employer fails to allow them to return to the workplace having given the appropriate written notice as set out in 2 above.
- The complaint submitted must be within 8 weeks of the 'relevant date' - this being the day following the date given by the reservist as being available to work.
- If the Tribunal upholds the complaint, it must make a declaration to that effect and it can direct any of the following:
- Reinstatement: within a stated timeframe with all and any rights around seniority and pension being restored; Or
- Re-engagement: which can include specific terms including the nature of the employment; the salary for the employment; any rights regarding seniority and pension must be restored; and the timeframe. Re-engagement can be ordered even if the employer has changed during the period of service. Or
- Compensation: up to 26 weeks pay to be paid to the reservist by the employer;
4. Protection against detriment and dismissal
A reservist has the right not to be subjected to any detriment by any act (or failure to act) of their employer for any reason connected with their service as a reservist.
A reservist is also protected against dismissal from day one of employment (i.e. does not need to have one years' service) in order to qualify to take an unfair dismissal complaint to the Tribunal where the reason (or the main reason) for dismissal is connected with their service as a reservist.