CORONAVIRUS EMERGENCY VOLUNTEERING LEAVE - FAQS (26 MARCH 2020)
On 17 March 2020, the government published details of the Coronavirus Bill 2019-2021 and set out proposed emergency legislative measures to address the 2019 novel coronavirus disease (COVID-19) outbreak. The Bill received Royal Assent on 26 March 2020 and the Coronavirus Act 2020 introduces a new form of statutory leave to allow workers and employees to act as emergency volunteers in health or social care, to alleviate the pressure on these essential services.
- Who is entitled to emergency volunteering leave?
The right will be available to workers who have been certified by an appropriate authority (a local authority, the NHS Commissioning Board or the Department of Health) to act as an emergency volunteer in health or social care, to alleviate the pressure on these essential services.
The following workers will be exempt from the entitlement to take emergency volunteering leave:
- Workers employed or engaged by businesses with fewer than ten staff.
- Crown employees.
- Parliamentary staff as defined in sections 194 and 195 of the Employment Rights Act 1996 (ERA 1996) and employees of the devolved assemblies in Wales, Scotland and Northern Ireland.
- Employees in police service.
- Other employees defined in subsequent regulations.
- How much notice do workers need to give their employer and how to they notify them?
Workers will need to give their employer three working days' notice and produce the certificate confirming that they have been approved as an emergency volunteer.
If the worker is an agency worker and they give notice to their employer and provide a certificate, the employer must as soon as reasonably practicable, provide copies to the other party (i.e. the client to whom the worker is supplied or to the agent if the employer is the principal)
- How much emergency volunteering leave can be taken?
Workers can take emergency volunteering leave in blocks of two, three or four weeks. Workers can take one period of leave in each "volunteering period". Initially there will be one 16-week volunteering period beginning on the day the legislation comes into force, but subsequent volunteering periods can be set by the Secretary of State for Health and Social Care.
- Can employers refuse to let their workers take emergency volunteering leave?
There is no provision for employers to refuse leave, for example because of operational need.
- Do workers need to be paid during emergency volunteering leave?
No, the right will be to statutory unpaid leave.
However, a UK-wide compensation fund will be established to compensate volunteers for loss of earnings, travel and subsistence. Workers who have been approved and who have acted as emergency volunteers in health or social care will be able to claim such compensation provided that they meet any conditions set down by the Secretary of State.
The government guidance has stated that loss of earnings will only be available where a volunteer has actually suffered a loss of earnings due to volunteering. Further details concerning the arrangements for claiming compensation and the conditions attached are to be published by the Secretary of State.
It is not yet clear whether the compensation offered by the government will replace volunteers' full pay or whether it will be subject to a cap.
- What rights do workers have during emergency volunteering leave?
The worker is still entitled to all of their terms and conditions of employment which would apply if they were not absent, except for those obligations which are inconsistent with the right to take the leave and terms and conditions about pay.
- Are workers protected from detriment or dismissed as a result of taking emergency volunteering leave?
Yes, the bill inserts a new statutory right into the Employment Rights Act 1996 which gives all workers the right not to be subjected to a detriment by any act or deliberate failure to act by their employer on the grounds that they have taken, or sought to take, emergency volunteering leave, or that the employer believed that the worker is likely to take emergency volunteering leave. The bill inserts a right of the worker to bring a claim in the employment tribunal if they are subjected to a detriment.
If the worker is an employee who is dismissed if the reason for the dismissal is that the employee took, sought to take, or make use of the benefits of, emergency volunteering leave or the employer believed the employee was likely to take emergency volunteering leave, they are to be regarded as automatically unfairly dismissed and would not need two years’ service to bring a claim. The statutory cap on compensation for unfair dismissal will not apply.
Similarly, if an employee is made redundant and the reason, or a principal reason, they have been selected for redundancy is because the employee took, sought to take, or make use of the benefits of, emergency volunteering leave or the employer believed the employee was likely to take emergency volunteering leave, the dismissal will also be automatically unfair and the statutory cap on compensation for unfair dismissal will not apply.
If the detriment to a worker is the termination of a worker’s contract, and the contract is not a contract of employment (i.e. casual worker contract), the compensation must not be more than that which the worker would have received if they were an employee (i.e. the same rules in relation to compensation apply to workers as they do to employees).
- What rights do workers have on their return to work following emergency volunteering leave?
An employee (the draft legislation only refers to employees and not workers here) returning from emergency volunteering leave has a right to return from leave to the job in which they were employed before the absence with the same seniority, pension and similar rights as they would had have if the employee had not been absent and with terms and conditions no less favourable than those which would have applied if the employee had not been absent.
- How long will the statutory right be available for?
The legislation will be time-limited for 2 years. The UK government will have the power to switch on the new powers under the legislation when they are needed, and, crucially, to switch them off again once they are no longer necessary, based on the advice of the UK’s Chief Medical Officers.
Cater Leydon Millard
26 March 2020
This FAQ document provides general guidance only and expert advice should be sought in relation to any particular circumstances.