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One of the measures introduced is the statutory right for workers to take emergency volunteering leave to help support essential health and social care services. This comes just 24 hours after the scheme was introduced, during which time reportedly over 400,000 volunteers have signed up.
The Coronavirus Act (‘the Act’) also provides for the modification of the statutory sick pay (SSP) regime, so that SSP is payable from the first day of sickness or self-isolation and can be funded by HM Revenue and Customs.Both these changes require secondary legislation so are not yet in force and will only take effect from the date appointed by the government.
The Act allows for eligible employees who are self-isolating due to coronavirus symptoms to claim SSP from day one of their incapacity to work (rather than from day four). This measure will apply retrospectively from 13 March 2020. The Act also provides that coronavirus-related SSP that has been paid by an employer may be funded by the state. HMRC may introduce regulations to provide for such funding. No regulations are yet in place, but it appears that this funding may be available where an employer has less than 250 employees. It has been suggested that this will be limited to two weeks’ SSP per eligible employee.
The new provisions are aimed at allowing workers to leave their main job and volunteer temporarily in the NHS or social care sector. Under the Act, an “appropriate authority” - such as a local authority, an NHS Commissioning Board or the Secretary of State for Health and Social Care - can certify an individual to act as an emergency volunteer.
Employees (including workers) who have been certified by the appropriate authority to act as an emergency volunteer will be able to take emergency volunteering leave.
Except in very limited circumstances, such as where a business has fewer than ten members of staff, employers will not be able to refuse a request for leave.
An employee wishing to take volunteering leave should give their employer three working days’ notice and provide them with a certificate from the appropriate authority.
The period of leave must be for either two, three or four consecutive weeks and this period must be specified in the certificate.
Each employee is only permitted to take one period of emergency leave during each ‘volunteering period’. The initial volunteering period will be a period of 16 weeks beginning with the day that these provisions come into force. It is likely that there will be second (and possibly even a third) volunteering period of a further 16 weeks, during which time employees could request further leave.
No, the right is to unpaid leave. However, a UK-wide compensation fund will be established to compensate these volunteers for loss of earnings, travel and subsistence. It is not yet clear whether employees will be able to recover their full pay under this fund or whether it will be subject to a cap.
During emergency volunteering leave, workers remain entitled to the benefit of all of their terms and conditions of employment – save for remuneration.
They will also have a statutory right to return to the job they were employed in before taking leave, on no less favourable terms or conditions.
In addition, the Act expressly confirms, and inserts new provisions in the Employment Rights Act 1996, or in Northern Ireland the Employment Rights (Northern Ireland) Order 1996, that volunteers will have the right not to be subjected to a detriment or dismissal on the grounds of taking emergency volunteering leave. Any dismissal for this reason will be automatically unfair and compensation will not be subject to the usual statutory cap.
Employers should make themselves familiar with the relevant part of the Act (Schedule 7) and should be conscious that the leave is not something that can be refused, expect in limited circumstances.
Of particular note is the protection from detriment and dismissal for taking emergency leave, which we expect will operate similarly to whistleblowing protections.
We await further information from the Government in respect of the implementation date and the funds that may be available by way of compensation.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at March 2020. Specific advice should be sought for specific cases. For more information see our terms & conditions.
27 March 2020
by Stuart McBride