The Coronavirus Act 2020, enacted on 25 March, contained a range of temporary measures intended to support the UK's response to the COVID-19 virus. The guidance accompanying the Act noted the significant level of challenge that the coming months would bring for the NHS and those in caring professions, with the combined pressures of increased staff absence (where staff are unwell or self-isolating with their households) and increased numbers of people requiring medical treatment or hospitalisation.
The Act accordingly introduces a number of measures specifically to support and supplement the activities of the NHS. One of those measures was the introduction of Emergency Volunteering Leave, allowing workers to volunteer in and through appropriate health and social care authorities.
To help anyone looking for further information on the Act, or emergency volunteering leave specifically, we have set out below the key elements .
Who is entitled to take Emergency Volunteering Leave?
Employees and workers (including agency workers) have the right to be absent from work on leave, provided they have an Emergency Volunteering Certificate ('EVC') issued by an appropriate authority (see below), which authorises them to act as an emergency volunteer in health and social care, and specifies the dates for which they will do so.
Is it open to all workers?
There are a handful of exempted categories of workers who cannot take Emergency Volunteering Leave, including:
- an employee of a 'micro-business' (an organisation with fewer than 10 staff);
- employees of the Crown, Parliament and the devolved institutions in Scotland, Wales & Northern Ireland; and
- those employed in the police service.
The Act leaves scope for further exemptions to be specified by way of regulations from either the Secretary of State for Health and Social Care (in respect of England, Scotland or Wales) or the Department for the Economy in Northern Ireland.
How long may the worker be absent from work?
The Emergency Volunteering Certificate will specify the length of the Emergency Volunteering Leave, which can last two, three or four weeks. Only one period of Emergency Volunteering Leave may be taken in the 'volunteering period' of 16 weeks from the date the Schedule comes into force but the UK Government or devolved administrations may specify additional, subsequent volunteering periods.
What is an 'appropriate authority' (for the purposes of issuing the EVCs)?
Different authorities are specified in the different parts of the United Kingdom:
- England: the Secretary of State for Health & Social Care; the NHS Commissioning Board; county or district councils; London borough councils (or equivalent); and the Council of the Isles of Scilly;
- Scotland: the Scottish Ministers or local councils;
- Wales: the Welsh Ministers or county/ county borough councils;
- Northern Ireland: the Department of Health in Northern Ireland; the Regional Health & Social Care Board; or a Health & Social Care Trust.
The Act does not specifically delegate authority for issuing EVCs to NHS Trusts or organisations working in partnership with or under contract to them. For the time being, the NHS in England is coordinating its volunteers through a central site . This site details four ways in which the volunteers can support the NHS:
- Community Response: collecting shopping, medication or other supplies for someone who is self-isolating;
- Patient Transport: providing transport to patients who are medically fit for discharge, and ensuring they are safely settled back into their home);
- NHS Transport: transporting equipment, supplies and/or medication between NHS services & sites; and
- Check-in and chat volunteer: providing short-term telephone support to individuals at risk of loneliness as a consequence of self-isolation.
What are the effects of taking Emergency Volunteering Leave on employment?
The legislation broadly mirrors existing protections for maternity and other 'family friendly' statutory leaves. The key elements are:
Terms and conditions
During any period of Emergency Volunteering Leave, workers will remain entitled to the benefit of their terms and conditions of employment, except in relation to remuneration (see below). They'll also remain subject to any obligations arising under those terms and conditions, save to the extent that they are inconsistent with the entitlement to take Emergency Volunteering Leave – for example, they will not be required to attend work.
Remuneration
The Act states that leave is unpaid, but that the Secretary of State must make arrangements for paying volunteers to compensate for (i) losses of earnings actually suffered and (ii) travelling and subsistence. Details of these arrangements have yet to be published, although accompanying guidance indicates that a UK-wide fund will provide for a flat rate of compensation.
Pension
As with maternity leave, there are deeming provisions so that pension schemes will treat time spent on Emergency Volunteering Leave in the same way as if the employee was working normally. In practice, this means that employer pension contributions should continue based on an employee's normal pay but employee pension contributions will be based on their actual pay during the period of their leave . If there is a pension salary sacrifice arrangement in place, the employer will have to continue to make both the employer and the employee pension contributions during the period of the leave.
Right to return
Again, as with maternity (and other statutory) leaves, an employee who returns to work after a period of Emergency Volunteering Leave is entitled to return to the job in which they were employed before the absence, with the same seniority, pension and other right as they would have had if they had not been absent, and on terms and conditions that are no less favourable than if they had not been absent. For example, any organisation-wide pay rise which took effect during an employee's time on Emergency Volunteering Leave should apply equally to that employee.
Are there any additional protections?
The Act creates additional provisions in the Employment Rights Act 1996, to extend:
- protection against detriment - for employees or workers taking Emergency Volunteering Leave (or those whose employer believes they're likely to do so);
- protection against dismissal. Where the principal reason for dismissal is that an employee either took Emergency Volunteering Leave or their employer believes they're likely to do so, a dismissal will be automatically unfair, irrespective of the employee's length of service;
- protection against redundancy selection. Where the employee is selected for redundancy because they've taken Emergency Volunteering Leave or their employer believed they would, their dismissal will be automatically unfair, irrespective of the employee's length of service.
What about furloughed employees?
In principle, furloughed employees could seek to take Emergency Volunteering Leave. However, to do so would involve a change of status (the ending of furlough and commencement of Emergency Volunteering Leave), meaning the employer would cease to qualify for reimbursement of employment costs under the furlough scheme. This seems convoluted, when in practice the Coronavirus Job Retention Scheme expressly allows employees to undertake voluntary work for organisations other than their employer, or organisations connected to their employer.
We anticipate that organisations may see an increase in uptake of the Emergency Volunteering Leave over the coming months as the NHS continues to seek assistance with facing the global pandemic. It is, therefore, important that you know what the Act and requests for leave may entail. If you would like any further information on the Coronavirus Act 2020, or – in particular – Emergency Volunteering Leave, please do get in touch.
