27 April, 2020
In the midst of a global crisis, with the health of hundreds of thousands of people at risk, many losing their loved ones, job losses, business closures, families and friends separated for an uncertain amount of time, it is easy to feel overwhelmed by the seemingly endless negative aspects of the pandemic. Alongside this, the emergency measures put in place by the Government to attempt to prevent the spread of the virus and mitigate the economic impact of the measures can be challenging and confusing for employers.
However, one uplifting aspect of the measures is the introduction of emergency volunteer leave. Whilst being another hurdle for employers to navigate, the impact and support for the scheme is a positive and inspiring development to focus on in challenging times. It is believed that more than half a million volunteers signed up as emergency volunteers since the introduction of the scheme at the end of March, with almost 5 people per second enlisting in the scheme in the initial hours after its announcement. The volunteers will support the NHS, assisting up to 1.5 million vulnerable people by delivering vital supplies such as food and medicines, driving them home after being discharged from hospital and being a point of contact and virtual companionship for those in isolation. This is more than double the initial target of 250,000 volunteers, which has now been raised given the overwhelming response. Following the initial surge of volunteers, NHS England's National Medical Director Stephen Powis stated, "Yesterday we sent out a call to arms for an army of NHS volunteers, looking for a quarter of a million volunteers, and I can say that overnight we've already had 170,000 people sign up… It's an absolutely astonishing response."
But what practically does this mean for employers? The provisions surrounding the management of emergency volunteer leave were introduced in The Coronavirus Act 2020, which received Royal Assent on 25 March 2020. Whilst we await secondary legislation in the form of regulations to bring the measures into force, we can still consider how the leave will take effect. The measures include the right for employees to take leave, protection from detriment for taking the leave and a compensation scheme for loss of income and out of pocket expenses.
The right to take leave applies to all workers and employees unless their employer employs less than 10 members of staff or they are in an excluded occupation, such as the police or military for example. The individual wishing to volunteer 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 which must be either 2, 3 or 4 consecutive weeks and must not be taken more than once during any "volunteering period". The first "volunteering period" began on 25 March, when the Act was passed into law, and will last for 16 weeks. The government will then decide whether to impose a new 16-week volunteering period.
On obtaining a certificate, the worker must provide written notice to their employer attaching a copy of the certificate and specifying the duration of leave no later than 3 working days before the period of volunteering leave is due to commence. For the duration of leave 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 has the right to return to the job which they held before their leave commenced on no less favourable terms to those which applied before they commenced emergency volunteering leave.
Workers will also be protected from detriment. A detriment is a wide-ranging term often used in employment legislation and is a question of fact on a case by case basis. Employers should be aware of the risk of dismissing an employee who is, has or is going to take volunteer leave as if it can be shown to be related to the leave in some way then the dismissal will be automatically unfair. The same can be said for redundancy. So employers faced with the potential for dismissal or redundancies should take legal advice to ensure its position is protected.
In addition, employers should consider amending 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. They should consider including information 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.
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 our Employment and HR Team on 0333 207 1130. Alternatively send any question through to Forbes Solicitors via our online Contact Form.