Some employees undertake dangerous activities when they are not
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
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
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
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
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
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.
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