Coronavirus – Emergency volunteering leave - UK

• United Kingdom

• Coronavirus - Workforce issues
• Employment law

26-03-2020

Updated 30/3/20

The Coronavirus Act 2020 was enacted on 26/3/20 and introduces a new statutory emergency volunteering leave, to support health and social care authorities. The Act’s provisions on volunteering leave are expected to be implemented imminently by regulations.

Health and social care workforces are under increasing pressure in providing services during the current coronavirus pandemic. With a worst case absenteeism rate of up to 30%, the Coronavirus Act 2020 sets out provisions allowing certain workers to take unpaid statutory emergency volunteering leave (“EVL”) in order to volunteer in relevant health and social care authorities. Current understanding is that relevant workers under the awaited statutory regulations will need to be suitably skilled or experienced in the field. To maximise the potential pool of volunteers that these authorities might draw from, the Act seeks to address two primary deterrents to participation: risk to employment and loss of income. EVL is a specific form leave for specific types of worker and is separate from general volunteering which anyone can access, with the permission of their employer, if working.

Below we identify some key principles of EVL for employers.

Coronavirus – EVL entitlement

Workers, including agency workers , have the right to take EVL provided that they are in receipt of an “emergency volunteering certificate” (“EVC”) from a relevant health or social care authority. EVCs will be available to those who have suitable medical or social care skills and experience.

Workers must give their employer at least 3 working days advance written notice of EVL and provide a copy of their EVC to their employer.

Coronavirus - categories of worker exempted from EVL

There are limited exempted categories of workers who may not insist upon taking EVL, which include:

• workers of micro-employers with less than ten workers
• Crown employees and Parliamentary employees
• Police and military
• those specified by the Secretary of State in future regulations

Coronavirus - length of EVL

EVL can be taken in periods of two, three or four weeks.

Only one period of EVL can be taken in any one 16 week volunteering period, although the Government is able to announce consecutive volunteering periods.

Coronavirus - effect of taking EVL

Terms and conditions

Whilst volunteering, workers will be entitled to the benefit of and be bound by their obligations under all of their terms and conditions of employment, except in relation to remuneration (which is defined as wages or salary).

Right to return

Workers have the right to return to their job on the same terms and conditions of employment as applied prior to the period of volunteering leave.

Pension Scheme rights

The model adopted is the same as for maternity leave (see s.75 Equality Act 2010). Consequently, pension schemes will be deemed to include a provision so that time spent on EVL is treated for pension purposes (including continued accrual of and calculation of benefits) in the same way as if the employee was working normally.

This means that employer pension contributions will need to be based on the employee’s normal pay, but employee pension contributions will be based on the amount of the employee’s actual pay during EVL.

Coronavirus - right not to suffer any detriment or be dismissed

The Employment Rights Act has been amended to include:

• a new section 47H, to give a worker the right not to suffer a detriment for taking EVL or because their employer believes they are likely to do so
• a new section 104H, providing for automatic unfair dismissal where the principal reason for dismissal is that an employee took EVL or their employer believes they are likely to do so
• a new section 105(7BC), providing for automatic unfair dismissal where an employee is selected for redundancy due to the employee taking EVL or because their employer believed they would take EVL

Compensation for breach is uncapped and requires no qualifying service.

Coronavirus - Compensation to emergency volunteers for loss of earnings

Although leave is unpaid, the Act requires that the Secretary of State makes accompanying regulations to compensate those workers who take EVL for loss of earnings and for travel and subsistence. It is to be assumed that this compensation will be payable directly by Government. The details of this are awaited with the regulations. Employers may be prepared to continue pay during this period.

Coronavirus - Volunteers outside of EVL

Although EVL has specific objectives and volunteers to whom it will apply, anyone can put themselves forward as a volunteer. If they are employed, this will need to be done with employer agreement. The NHS in England has already launched its site for volunteers to register: goodsamapp.org/NHS and in the first 24 hours it was reported that there had been half a million volunteers. The site states that volunteers will be asked to do one of the following four types of volunteering:

• delivering medicines from pharmacies
• driving patients to appointments
• bringing them home from hospital
• making regular phone calls to check on people isolating at home

In Wales, volunteers can contact their local councils or register on the Volunteering Wales website and, in Scotland, via Volunteers Scotland.