My Lords, we recognise and value the contribution of reservists and need to be sure that their interests are properly protected. Part of this is making sure that their reserve service does not negatively affect their employment prospects. That is why Clause 47 amends the Employment Rights Act 1996 to remove the current two-year qualifying period for claims of unfair dismissal where the reason for dismissal is, or is primarily because, the individual is a reservist.
I should emphasise that protection is already in place to ensure that reservists are not dismissed as a result of any duties or liabilities that they have to undertake, for example as a result of being mobilised. This protection is provided by the Reserve Forces (Safeguard of Employment) Act 1985, Section 1 of which gives a reservist who is called out for reserve service the right to apply to his or her former employer to be reinstated after they return from mobilised service. In addition, Section 17 of the 1985 Act makes it a criminal offence for an employer to dismiss an employee solely or mainly by reason of any duties or liabilities that may arise as a result of being called out.
One key strand of the White Paper was to foster an open and honest relationship with employers. Employers of reservists make a greater contribution to national security than others. We understand and value the commitment that employers make. We have seen from some of the evidence submitted—I am thinking particularly of that from the Confederation of British Industry—that employers are wary of the introduction of discrimination-type legislation, and that such an approach would run counter to the partnership approach that is needed between employers and defence. CBI members were particularly concerned that such an approach could strain working relationships between employers and reservists.
As part of this partnership approach we will: provide employers with greater awareness and predictability of training and mobilisation commitments; streamline the administrative arrangements to receive financial assistance when a reservist is mobilised; introduce additional financial incentive payments to micro, small and medium-sized enterprises; and provide appropriate recognition of the contribution that these employers make by enhancing our existing recognition schemes.
Subsection (1) of the proposed new clause in Amendment 18B would mean that Section 39(4) of the Equality Act 2010 would apply “as if membership” of the Reserve Forces “were a protected characteristic”. Surely, membership either is or is not a protected characteristic. The advice from the Government Equalities Office is that being a reservist would not count as a protected characteristic as defined in the 2010 Act—in other words, age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, and sex or sexual orientation.
There have been occasional calls for various characteristics to be given protected status, particularly during the preparations for the Equality Act. These were mostly in relation to some form of physical appearance, ranging from extremes in individuals’ height and weight to the way in which people may choose to dress. However, after full consideration, the list of protected characteristics was set as already outlined. Including reserves as a protected characteristic in the Equality Act would be a disproportionate tool to tackle the problem and could give rise to the same argument being deployed successfully in relation to a number of the physical characteristics that I mentioned. This could have the result of doubling the number of characteristics, which would have an increased on-cost to businesses, public authorities and the courts.
5.15 pm
In relation to subsection (2) of the new clause proposed in Amendment 18B, individuals with protected characteristics do not need to declare these when applying for jobs, so it would seem to be an unreasonable request for reservists. Currently, reservists can choose whether to declare their reserve status in an application form, and this seems to work well for both individuals and employers.
It is our policy that when in employment reservists must inform their employers of their reserve service, except for where a security waiver—for instance, for Northern Ireland and special forces—has been approved by the chain of command. Despite this, many reservists have been unwilling to tell their employer of their reserve status and so claim to be unemployed or do not provide accurate employer details to their chain of command. The chain of command is also obliged to write to employers informing them of their reservist employees.
I acknowledge that that application has been inconsistent but we are now taking action to ensure a consistent approach. This January, commanding officers of reserve units wrote to their reservists’ employers to outline the upcoming event in the forthcoming training year as part of our commitment to better inform employers of training so that it can be better planned for by the employer. However, the process will still rely on individual reservists providing accurate and timely information. The focus will be on ensuring the existing rules are communicated effectively and that senior reservists lead by example, promoting and encouraging compliance.
Addressing subsections (3) and (4) in Amendment 18B, we have already taken steps to develop our engagement with employers and build our relationships with them. We have already introduced a corporate covenant as the framework for employers to engage with defence on the full range of personnel issues, including reserve service issues. We are currently setting up the national relationship management organisation to provide a single point of contact for the largest external stakeholders on defence personnel issues. It will establish a mechanism by which relationships can be managed and sustained across our departmental and tri-service boundaries. Additionally, defence will continue to seek informed independent advice from the National Employer Advisory Board about how the MoD can most effectively gain and maintain the support of employers for Britain’s Reserve Forces. Our employer support helpline and web pages have also been updated to include a new employer toolkit.
We also have an external scrutiny group for the Future Reserves 2020 programme to review the change programme and the overall health of the reserves. We have been discussing a government amendment to require reserve associations to report annually on the state of the volunteer Reserve Forces, which will include an assessment of recruitment and retention.
Turning to Amendment 18D concerning the Employment Rights Act 1996, I recognise that the noble Lord is seeking to further the experience of reservists by ensuring that they have adequate time to complete all their training. We hope that all employers
will feel able to support reservists in their employ by permitting them to take unpaid leave for the purpose in the way that this amendment envisages. However, the amendment, if carried, would have a regulatory effect on employers and we need to look at this in a slightly wider context.
One of the key strands of the White Paper was to foster an open and honest relationship with employers. The amendment would run counter to the partnering approach that is needed between employers and defence and could make employers more reluctant to employ reservists because of the increased legislative burden that such an amendment would impose on them. As part of this partnering approach, we will provide employers with greater awareness and predictability of training and mobilisation commitments. The White Paper gives an undertaking to ensure that employers are informed about their reservists, subject to security requirements.
The White Paper also committed to notify employers of their reservists’ training plans each year. The Civil Service is setting an example by offering a minimum of 10 days’ additional special paid leave each year for reserve training. We invite other public and private sector employers to follow its lead on a voluntary basis, without the need for additional legislation.
It is worth highlighting that reserve service will benefit different employers in different ways. For some, the improved skills, experience and training of the individual reservist will be beneficial. For others, where the reservist’s military role is close to their civilian one, there will be more benefit from transferable skills. We hope that the benefits that reserve service can bring to an employer will outweigh any difficulties in allowing a reservist time off for their training.
In conclusion, it would be wrong to penalise good employers because of bad employers, and this amendment would do just that. We want to encourage employers to allow reservists time off for training rather than force them to do so by introducing further legislation. A survey by the Federation of Small Businesses of its members in December 2012 and January 2013 found that almost 40% of small businesses would consider employing a reservist in the future and that 7% currently employ or have previously employed a reservist. Making it more onerous for employers to employ reservists could have the perverse effect of encouraging employers to seek means to avoid employing reservists.
Finally, I believe that we are meeting, or will meet in the near future, the intent of subsections (3) and (4) of the new clause proposed in Amendment 18B. I do not believe that subsection (1) in that amendment is deliverable or desirable, and the same applies to subsection (2). I therefore ask the noble Lord to withdraw the amendment.
While the intent of Amendment 18D is laudable, I have tried to outline the careful balancing act that we have to strike between working with employers by encouragement and example-setting, and legislating, which may have some undesirable consequences and would seem to be a disproportionate tool when there is a body of employers that want to work with the reserves. We are engaging hard with employers so that more recognise the benefits of employing reservists.
I thank my noble friend Lady Garden for her support, and I hope that I have satisfied the concerns of the noble Lord, Lord Rosser.