Should an employer dismiss someone who is covering a reservist's role if the reservist applies for reinstatement?
If a reservist applies for reinstatement following demobilisation, the employer must reinstate him or her to the role in which he or she was employed prior to mobilisation, unless it is not reasonable and practicable to do so.
The employer may have employed someone else to cover the role in the reservist's absence, but would not have known the length of the reservist's absence at the time this was arranged. Section 5 of the Reserve Forces (Safeguard of Employment) Act 1985 sets out the circumstances in which it will be seen as reasonable and practicable to reinstate a reservist where this requires another employee to be dismissed.
It will not be reasonable and practicable to reinstate the reservist into a particular role where this would require the dismissal of another employee if the employee to be dismissed:
- was employed by the employer prior to the reservist's mobilisation;
- had been employed for longer than the reservist at the date of his or her mobilisation; and
- was not employed in a less permanent type of employment than the reservist (eg on a fixed-term contract compared to a permanent contract).
However, if the employee who would have to be dismissed does not meet the above requirements, for example an employee who was recruited on a fixed-term contract to cover the reservist's absence, the employer would have a duty to reinstate the reservist to the role, as long as it was otherwise reasonable and practicable to do so, even where this means dismissing the other employee. A dismissal in these circumstances is likely to be potentially fair on the ground that there is "some other substantial reason" for the dismissal, but the employer must ensure that it follows a fair dismissal procedure, including considering alternative employment.