Can employers include a reservist's role in a redundancy pool?
There is no automatic rule against making reservists redundant, either while they are called out to serve (including where they are mobilised to aid the military response to the coronavirus (COVID-19) pandemic) or while they are working for the employer. However, s.17 of the Reserve Forces (Safeguard of Employment) Act 1985 makes it a criminal offence to dismiss a reservist (without their consent) when they are not called out, solely or mainly by reason of the fact that they might be called out. Therefore, an employee's membership of the reserve forces should not influence the redundancy selection decision.
Employees do not need the usual two years' qualifying service to claim unfair dismissal where the reason or principal reason for dismissal is the employee's reservist service.
Redundancy selection criteria should not unfairly disadvantage a reservist, for example by using attendance at work as a criterion and scoring employees for a period where the reservist was called out. This is more likely to make a reservist's dismissal unfair.
If an employer is considering making redundancies while a reservist is called out for duty, it should try to involve the reservist in the consultation process as far as possible. However, it should recognise that it may not be possible to consult the reservist at all if they are on active duty. Even if a reservist's role is made redundant while they are called out, the employer's duty to reinstate the reservist will still apply on their demobilisation. The employer must consider whether or not it is reasonable and practicable to reinstate them into an alternative role.