Member Article

Following Russia’s invasion of Ukraine on 24 February 2022, many individuals are being called up to defend their home countries. This has left employers wondering whether they are obligated to release those employees from employment.

In the UK, if an employee is mobilised for full-time service in the UK armed forced, there are rules in place to protect an employee’s employment. For example, employers can be fined in court and made to pay compensation if they end a reservist’s employment because of mobilisation. Further, after service, reservists have the right to return to the same job. These rules do not apply to nationals of other countries who have been called up by their home country’s armed forces. However, to ensure fairness and flexibility during these worrying times, employers may want to follow a similar approach.

Employment relationship

If an employee is called-up to provide military service to their home country, it is unlikely that an employer will be able to stop the employee from leaving (if they choose to follow that call up). Whilst the call up notice is unlikely to be binding on the employer under UK law, the employer should have a discussion with the employee to provide support wherever possible.

If an employee decides to travel to answer the call up, employers may consider that the most appropriate action is to keep the employee’s job open for a period of time. If employers keep the job open, there will need to be clear parameters around timing, benefits and status of the leave (i.e. paid, unpaid, special leave etc) as there is no way of knowing how long this situation will continue. Employers can ask employees to keep in touch, but employers should remember that checking in is unlikely to be a priority for these employees.

There is no obligation on an employer to release employees and keep their employment continuing indefinitely. However, as above, UK nationals are protected in these situations and employers will need to decide whether to treat non-UK nationals in a similar way. If an employer has a policy that covers reservists, employers should read the policy carefully and consider whether it applies to all citizens of any country who are called up by the armed forces in their home country.

Given that it is impossible to predict how long the war in the Ukraine will last, employers may want to consider how they can end the employment relationship. Employees may resign of their own volition, but we consider this to be unlikely as employees will seek support from their employer. Employers could seek to argue that the contract of employment has been frustrated (i.e. the employee can no longer fulfil their obligations), however this argument is a difficult one to establish.

Alternatively, employers could take steps to dismiss the employee, and in this situation, employers may want to consider informing the employee that they would be welcome to re-apply for a role with the organisation at any time and that the dismissal is not a reflection on the employee’s work ethic or performance. If an employee is dismissed, subject to their length of service, they may be entitled to challenge their dismissal in the Employment Tribunal on the grounds that it is unfair. With the rise of social media as a platform to hold businesses to account, a dismissal could lead to criticism of the employer and potential boycott of the organisation.

Employers may be wondering how a dismissal in these circumstances could be unfair, given that their business still needs to operate with staff and there is no indication as to when the employee would return after service. One of the factors taken into consideration when considering the reasonableness of a dismissal if the size and administrative resources of an employer’s undertaking. As such, it is likely that a large employer with a significant employee base may be expected to have more flexibility in these situations.

Employers are encouraged to a consistent stance with all employees who are called up to fight in the Ukraine, irrespective of the employee’s race or nationality. An employer could be exposed to discrimination claims if they treat employees differently based on nationality – for example, if an employer would allow Ukrainian employees time off unpaid but would refuse this request from other non-UK national employees.

Support

Employers will already be thinking about how employees can be supported during this difficult time. It is important to remember that there is no one-size-fits-all approach, and some employees may require more support than others, particularly if they have family members living in the Ukraine.

For those employees who are called-up by their home country, some practical considerations for employers include:

• Setting out the parameters of an employee’s leave clear from the start, including ensuring that the employee is aware that their employment may be terminated if they do not return within a specified timeframe.
• Considering whether or not an employee’s benefits will be maintained (i.e. death in service, pension, insurance). It would be prudent to check the terms of any such benefits.
• Providing flexibility and ensuring that all employees are treated equally.

On a wider scale, we would suggest that employers consider the below measures for all employees:

• Remind employees of any Employee Assistance Programme that may be in place. If an organisation does not operate an EAP, it should inform employees of how they can access counselling and advice externally.
• For those employees who are Ukrainian nationals, employers should consider granting leave wherever possible (whether that leave is paid or unpaid is a decision for the organisation), to allow those individuals time to process the situation or arrange practical help for family members who are based in the Ukraine.
• Employers are encouraged to maintain some level of communication with all of their employees about the ongoing situation in the Ukraine, however, employers should consider whether the communication is necessary. Some employees may not want to be reminded of the situation constantly as it may be too distressing.