Some employees undertake dangerous activities when they are not at work!
This is certainly the case if you have an employee who is a reservist for one of the Armed Forces.
Currently, if a reservist who is resident in Jersey goes on active service, they have no protection regarding the job they are in when the period of service commences. They depart not knowing whether they will have a job to return to.
Should they have some protection regarding their employment ? And if so, how much?
Some of you may have recently completed the survey which was emailed out by the Employment Forum on 28 October seeking views on whether legislation should be introduced in Jersey to provide some employment protection to employees who are also reservists in the Armed Forces. The survey formed part of the consultation which the Employment Forum was tasked with undertaking by the Minister for Social Security.
When I completed the Forum's survey, I found it hard to answer some of the questions. I struggled to achieve fairness between the interests of the polarised viewpoints – the desire to want to do the right thing by the employee, the employer and on behalf of the island, in contributing to the defence of Great Britain or the United Kingdom.
At issue is balancing allowing an employee (who is potentially putting themselves at real risk of serious injury or even death) the right to return to the same job after the period of service (in the event that they are physically and mentally able to) with the logistical challenge of an organisation that is trying to ensure it is adequately staffed to meet the needs of the business, but not over staffed.
It struck me that the issue of whether the job should be kept open for the reservist employee in the event that they return to the Island safely, and confirm their desire to return to work, is currently not that dis-similar to the scenario of a pregnant woman who goes off on maternity leave. On the last day before the leave commences, the employer does not definitely know if she will return, when or whether she will be able to do all of her former duties, and the employee cannot guarantee that she will either. The employer does not know exactly how things will be for the business at the time when she wishes to return.
Similarly, a reservist is likely to be absent for more than one period of service, in the same way that a woman often has more than one pregnancy or maternity leave.
It has been said for many years that it is shocking that Jersey does not yet have any statutory protection for a working pregnant woman and we have all read that this is due to be introduced, but to date it has not proved possible to produce proposals that are generally regarded as reasonable or acceptable when compared with other jurisdictions.
Currently, there will undoubtably be much variation as to what happens to reservist employees in different organisations in the island, ranging from termination of their employment through to keeping the same position open for them for a lengthy period. In the absence of any law or guidance, this is understandable but many employers may find themselves having to defend a potential claim for unfair dismissal where they do not take the employee back to the same job, or on the same terms and conditions.
As always, larger entities might be able to absorb and accommodate the absences of a reservist employee more easily.
In the UK, for many years there have been numerous pieces of legislation (different Acts, Regulations and Statutory Instruments) on the issue. Perhaps Jersey employers that also have a UK presence, currently extend the UK rights to their Jersey reservist employees?
If the Minister of Social Security subsequently decides to introduce protective legislation in Jersey to safeguard the employment of reservists, then the Law Officers' Department will be tasked with having to draft one consolidating law that covers all of the pertinent points and issues.
Some may feel that due to the size of the population of the Channel Islands, local employers are simply unable to accommodate the additional costs involved in providing protection to reservist employees. However, as the Isle of Man introduced some legislation on the issue as long ago as the mid 1980s, one might say that there would seem to be no good reason why Jersey should not be able to follow suit.
If you have previously had to address this issue, your experience and any difficulties would certainly be worth sharing with the Forum. Alternatively, if you have a strong view on the topic and did not get to complete the Forum's online survey, you could nonetheless contact the Forum at this stage so this can be taken into account.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.