MILITARY CALL UPS AND EMPLOYMENT LAW

First a pandemic, then world turmoil after a military invasion: these shocking events were scarcely contemplated by current generations. They have eaten away at modern ways and are impacting daily routines particularly our working lives.

Covid 19 accelerated flexible working and created the hybrid working concept which for many now seems quite normal. It is interesting that the Isle of Man’s timely changes to its flexible working regime may well have had in mind the importance of a work/life balance together with, what was at that stage, the gradual shift away from a rigid Monday to Friday 9 to 5 timetable. These prescient changes to the Employment Act 2006 were made in January 2020 extending the right to request flexible working. Serendipitously this created an appropriate environment for the pandemic enforced changes which rapidly followed. Note though that flexible and hybrid working have differing features: flexible working focuses on the individual and has a statutory framework; hybrid working is more about the business’ needs and is normally negotiated mutually.

Territorial war being waged in Europe, also difficult to comprehend just a short time ago, causes concerns to many employers on various fronts, not least humanitarian. As well as operating within a much stricter sanctions environment, employers will be concerned about the wellbeing of their staff particularly those from Ukraine or neighbouring countries.

British Isles-based Ukrainians who are called up or volunteer to fight for their country will need to deal with what happens to their employment relationship while on service. The Reserve Forces (Safeguard of Employment) Act 1985 of Parliament is extended to the Isle of Man by an Order in Council made on 25 November 1986. This Act makes specific employment preservation arrangements for individuals mobilised for UK reserve armed forces. They have various rights including to return to the same job. But these safeguards do not apply to military reservists for other nations, although employers might nonetheless consider that in these circumstances they should be given unpaid special leave.

Larger employers might have a reservist policy but for most Island employers it is unlikely current circumstances have been contemplated by a written policy. If non-reservist staff volunteered to join armed forces or help in the humanitarian crisis then similar considerations will apply as there would be no extra protection in labour law for such folk beyond the normal Employment Act 2006 unfair dismissal provisions.

Where any special leave situation arises, not already dealt with by an existing policy, employers should be careful to clarify in writing the precise parameters of absence concessions allowed. Thus the departing employees must know how long their employment might be protected, whether they are being paid, what will happen to any contractual benefits and when the situation is going to be reviewed particularly in relation to preservation of continuity of employment. Arrangements should also be made for such absent staff to keep in touch generally throughout the absence period. Above all, employers should bear in mind that, given the current distressing situation, staff affected need extra support; good employers always look out and plan for this so they can be flexible in an employee’s time of need.

Extraordinary times demand tailored solutions and by negotiating Brexit fallout, the pandemic and then military strife, Island employers will have learned plenty about good practice and the importance of investing time, care and attention in their staff.

Advocate John T Aycock is head of M&P Legal’s Employment Unit and has more than 30 years’ labour law experience in three jurisdictions.

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