Safeguard of employment - questions

Discussion in 'Army Reserve' started by crossed_axes, Jan 30, 2009.

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  1. I was intrigued by this story from Fuzzy_Wuzzy particularly the bit about jobs only being protected during the four weeks before mobilisation, which I'd never heard of:

    “… when a job came up towards the end of last year I asked to be mobilised without speaking to my Company. Within a week the paperwork landed on my boss's desk and very shortly thereafter I had several conversations which led me to believe my job was being made redundant. At first, I was not overly concerned as I thought my position was protected by RFA96 and the Safeguard of Employment Act 1985. However, having read SoE 85 realised I was only protected if employed for the 4 weeks immediately prior to mobilisation, (this was December for a Feb 09 callout giving them time to go through a consultation and finish me before the 4 weeks and therefore not having to safeguard my job).”(In full here http://www.arrse.co.uk/cpgn2/Forums/viewtopic/t=114213.html )

    I’ve had a look at SOE85 and found the relevant bit. According to section 2 you are only entitled to be reinstated after being demobbed if you were working for a company in the four weeks before starting full time service. So, if you give your employer plenty of warning and they get rid of you more than four weeks before you go to RTMC then you aren’t entitled to get your job back.

    BUT …

    SOE85 (section 17) also makes it an offence (so something the police would deal with, I think) if an employer terminates your employment “solely or mainly” because you are in the TA. It appears that if a court has “reasonable cause” to believe that being in the TA “caused or contributed to the termination of the employment”, it is the employer who has to prove that the termination wasn’t connected with the person being in the TA.

    So it looks like if you tell your employer you are likely to be mobilised then you are made redundant they’d need a pretty watertight reason for selecting for you for redundancy other than the fact you are in the TA.

    Is this right - or am I reading it wrong? Has section 17 ever been used? Should people in the TA / employers know more about it?
     
  2. I think whats its saying is that you can't start a new job three weeks before being deployed and then expect to get that job back when you demob. If you have been with your employer for more than four weeks then you have some protection (but not much!!)
     
  3. My understanding is that although the legislation exists it is up to the soldier to take their employer to the relevant court or tribunal - The Police won't give a damn. Neither will the Army, or SABRE - well, except for a few encouraging remarks. The onus on engaging, paying for and being liable for costs associated with legal counsel should the case fail all fall to the soldier. The reality is that this is a risk few unemployed people can take, hence the pragmatic course is to just get another job.

    Also, my reading of the legislation is that the onus is very much on the soldier to prove that (s)he was dismissed for being in the TA. Compare the language with that in the legislation for, say, pregnancy to see the difference. That, and other discrimination legislation, is draconian, deliberately so, and forces the burden of proof firmly onto the employer.

    I am no expert in this area, and would be happy to be corrected by those more knowledgeable than me.

    In reality, while a company may dismiss you for being in the TA they'd have to be pretty stupid to write that down on paper. If the redundancy paperwork looks in order at first glance then proving it isn't is an uphill struggle.

    This of course is why the Army have a policy that no-one should be mobilised unless their employer is onside. There is no real protection in law, and firms are increasingly wise to this.