Contribution
My Lords, we have already started to discuss some of the themes here; the noble Lord, Lord Empey, raised some of them. On Amendments 42 to 44, I am grateful to my noble friends Lady Penn and Lord De Mauley for their support. The group addresses what I believe is the largest single gap in the law protecting reservists.
We protect the reservist who is already in the job, and almost nobody else. Section 17 of the Reserve Forces (Safeguard of Employment) Act 1985 makes it a criminal offence to dismiss a reservist because of call-out liability. Section 48 of the Defence Reform Act 2014 removes the qualifying period for unfair dismissal where the reason is connected with reserve membership. Both are about dismissal. Neither touches a candidate sitting an interview. I add that where an employer is convicted under Section 17, compensation is capped by Section 18 at five weeks’ pay. That is the entire financial consequence of criminally dismissing a reservist.
Amendment 42 would make it unlawful to refuse a person employment because they have been or may become a reservist, with a remedy in the employment tribunal. Our closest ally covers this expressly. American law protects applicants as well as employees and reaches past, current and future military obligations. This House has already accepted the principle at home: Part III of the Trade Union and Labour Relations (Consolidation) Act 1992 makes it unlawful to refuse a person employment on the grounds of trade union membership. It is difficult to explain to a reservist why union membership merits statutory protection at the point of hiring and service to the Crown does not.
This matters because of what it causes. The reason reservists conceal their service from employers is the belief—frequently, a correct belief—that declaring it will cost them the job. That belief is entirely rational, because there is no remedy if they are right. The consequence is that the whole architecture of employer support rests on people hiding the very thing it exists to support. That is not a stable foundation for the whole force, and it is not a recruiting proposition either.
I expect to be told that there is no evidence of a problem. The absence of evidence is a function of the absence of a remedy. Nobody records a refusal that they have no means of challenging. I also expect to be told that subsection (6) of the proposed new clause, on the shifting burden of proof, is too onerous, but it is the standard provision used throughout discrimination law and well understood by tribunals, and it is narrower than the American test. Without it, the clause would be decorative, because no employer writes down that they declined a candidate over their reserve service.
Amendment 43 deals with what happens afterwards. Between the 1985 Act and unfair dismissal lies everything that actually occurs in practice: being passed over for promotion, taken off the client list, given the shift pattern which clashes with drill nights, or quietly moved sideways after a mobilisation. The employer who does not want reservists does not dismiss them. Dismissal is legally risky and commercially untidy. They simply make staying unattractive, and, at present, that is entirely lawful. American protection reaches promotion, retention and any benefit of employment. Ours reaches nothing until the individual is sacked.
This is settled machinery. It mirrors the detriment provisions already in Part V of the Employment Rights Act, which protects whistleblowers, health and safety representatives, and pension trustees. It falls hardest on those the reserve can least replace: the medical, legal, cyber and engineering specialists that the Regular Forces cannot recruit and could not afford to grow.
Amendment 44 concerns the reservists nobody has legislated for at all. A substantial proportion are self-employed, run small businesses or are partners in professional firms, and not one of the protections in the Bill or in existing law reaches them. For that person, the cost of annual camp is not leave; it is a fortnight of lost revenue with the overheads still running. Australia’s protections expressly reach partnerships, and its employer support payment scheme covers the self-employed. Canada operates something comparable. We pay the reservists a daily rate and give the employer a certificate. Again, to my own Front Bench, I suggest that this is very pro self-employed businesses and business owners.
Subsection (3) of the proposed new clause is deliberately a duty to review and not a spending power, so it creates no charge on public funds. I ask the Government to examine the question and report, not yet to fund the scheme. If the answer is that we cannot afford what Australia and Canada do, this House is entitled to be told the figure.
I recognise that these are not government amendments and that the Minister may have concerns about the drafting. If the principle is accepted, I am entirely content for the drafting to be the Government’s, and I would welcome a conversation with him and with colleagues from all sides of the House before Report. I beg to move.