Coronavirus Act 2020: Emergency Volunteer Leave

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Employment & HR Article

26 March, 2020

What is it?

The Coronavirus Act 2020, which received Royal Assent on 25 March 2020 introduces the concept of an "emergency volunteer".

The Prime Minister's address on 25 March 2020 praised the reaction of the British public after it was announced that in excess of 500,000 people had indicated that they wanted to volunteer to help the NHS in this time of crisis.

This guidance note will provide an overview of what the new legislation means for employers, and what practical steps employers now need to take as a result.

A point to note however, is that at the time of writing, the provisions within the Coronavirus Act relating to emergency volunteer leave have not yet come into full effect as the government is required to enact secondary legislation in the form of regulations to give effect to the emergency volunteering leave provisions set out in the Act.

Notwithstanding this, employers are advised not to delay in taking the necessary action, as the government is expected to act quickly in producing the regulations as it has done with the substantive legislation which took a matter of days to proceed through Parliament.

The protections afforded to workers

The concept of "emergency volunteer leave" is designed to facilitate Authorities' ability to draw on the maximum number of volunteers available to them by introducing measures to incentivise volunteers in addition to protecting those who volunteer but are already in employment.

Those measures will include but are not limited to:

  • The ability to take leave;
  • Protection from detriment for taking the leave; and
  • A compensation scheme for loss of income and out of pocket expenses.

The mechanics of emergency volunteering leave

Eligibility

Workers and employees are entitled to take emergency volunteering leave, unless their employer employs less than 10 members of staff or they are excluded. Workers may be excluded from taking such leave if they are employed in certain occupations. These occupations are listed in the occupation.

Emergency volunteering certificate

If a worker wishes to volunteer, they will need to first obtain an "emergency volunteering certificate" from an "appropriate authority" e.g. County Council or District Council.

The certificate must specify the duration of the volunteering leave. The Act sets out that the periods of leave must be either:

  • 2 weeks;
  • 3 weeks; or
  • 4 weeks.

The above leave must be consecutive and must not be taken more than once in any "volunteering period".

The first "volunteering period" will begin as of 25 March, when the Act was passed into law. It will last for 16 weeks. The government will then decide whether to impose a new 16 week volunteering period. The government can repeal this legislation at any time, which will presumably happen once the threat is under control.

Notice to employer

The worker must provide written notice to their employer no later than 3 working days before the period of volunteering leave is due to commence.

The notice must specify the duration of leave (having regard to the prescribed periods referred to above) and the worker must attach a copy of the certificate of volunteering leave.

Effect on employment

The workers terms and conditions will be preserved but they will not be entitled to be paid for the period they volunteer. Instead, volunteers will have to apply for compensation through a government scheme to cover lost earnings by taking such leave.

After the period of leave ends, the worker will have a right to return to the job which they held before their leave commenced.

As to terms and conditions, employees/workers are entitled to return on no less favourable terms to those which applied before they commenced emergency volunteering leave.

Protections

The new legislation is aimed at both protecting and incentivising those workers who wish to volunteer.

Therefore, the Coronavirus Act 2020 will amend existing employment legislation, namely the Employment Rights Act 1996.

The amendments will bring into force the following changes:


Detriment

Workers will be protected from detriment if they either:

Take emergency volunteering leave;

  • Seek to take emergency volunteering leave; and/or
  • Make use of the benefits of the leave provisions (essentially claiming loss of earnings as a result of taking emergency volunteering leave).

The employer will have had to have done something or failed to do something as a result of any of the above which results in the worker suffering a "detriment" in order to be liable.

A detriment is a wide-ranging term often used in employment legislation. Whilst there is no statutory definition, whether an employee has suffered a detriment is a question of fact on a case by case basis.

Dismissal

If an employee is dismissed as a result of the actions specified at 1, 2 and 3 above, then the dismissal will be automatically unfair. An employee will be able to issue a Tribunal claim on that basis. Automatic unfair dismissal removes the requirement that an employee needs to have 2 years continuous service to bring that claim.

Redundancy

If an employee can show that they have been selected for redundancy on the basis of those actions specified at 1, 2 and 3 above, then the decision to dismiss on grounds of redundancy will be automatically unfair.

Key points

  • Employers should consider amending their existing Employment and HR policy manuals to include a policy and procedure on emergency volunteering leave in order to ensure staff follow the correct procedure for taking emergency volunteering leave;
  • Employers should look to include information in that policy which may assist employees looking to take such leave for example, signposting employees to check their insurance position if they are using their own vehicle to volunteer, as this could impact on their insurance premiums or whether they are covered for undertaking such activities;
  • Employers should take care when dealing with instances of staff providing them with notice to take emergency volunteering leave and take advice where necessary; and
  • Employers should take care in the current circumstances when laying off/making redundancies and remain vigilant to abuse of the volunteering leave provisions in those situations.

If you require further advice on any aspect of the new emergency volunteering leave provisions or require amendments to your existing policies and procedures to reflect the changes, please do not hesitate to contact Joshua Burke, solicitor in our Employment and HR team on 01772 220 155/07970 000 448 or at Joshua.burke@forbessolicitors.co.uk.

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