Geoff Hoon, the Secretary of State for Defence, made an order last week under Section 54(1) of the Reserve Forces Act 1996 to enable the call-up of reservists if there is military action against Iraq.

What does this mean for bosses whose employees may receive a call-up notice? What are their obligations and can they refuse to release someone? What are the consequences of refusal? And what happens afterwards — must the reservists be taken back? Employers can apply for an exemption or deferral from call-up on the basis that the loss of the employee would cause the business financial hardship that could not be alleviated by financial assistance from the Secretary of State.

But they must apply to the Secretary of State, or a person designated by him for this purpose, within seven days of a call-up notice.

An employer’s hardship from the loss of an individual will be balanced against the Forces’ need for the services of that individual and the employer will have a right of appeal against a refusal. The called-up employees can apply themselves for exemption in certain circumstances, for instance where they are caring for a severely disabled person.

But employers must be careful not to connive with their employees to obtain an exemption on false pretexts; to do so would be a criminal offence.

But if a business does not qualify, then it will have to allow the employees to go — resulting in a suspension of their employment — unless they agree otherwise. For the employer, the good news is those called do not have to be paid cash or benefits (unless agreed) and the business may be able to obtain compensation from the Secretary of State for particular financial hardship from its loss — for such things as loss of sales, market reputation and/or goodwill.

When military service ends, the employee may have a right to reinstatement or a claim for compensation from his or her boss. He or she must reapply for reinstatement by the third Monday after the end of military service (unless there is reasonable cause for delay such as illness or other arrangements were agreed).

And contracts of called-up employees must not be terminated without their consent — to do so would be a criminal offence. A reinstated reservist must be employed for a minimum of 13, 26 or 52 weeks (as appropriate) if he or she had at least 13, 26 or 52 weeks of service respectively immediately before call-up. And as with maternity cases, reinstatement must be to the same or “most favourable” job or terms of employment, as before.

Jessica Learmond-Criqui is head of the employment, pensions, immigration and benefits department and Justin Costley is an assistant solicitor at the City law firm Altheimer & Gray.

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