The Coronavirus Act 2020 received Royal Assent on 25 March 2020. It brings into force the emergency powers first published by the Government on 17 March to enable them to deal with the current crisis.
In summary, although the Act deals with some of the employment-related issues at a “high level”, the main employment-related provisions relating to sick pay and volunteering leave require secondary legislation to become effective, and are not yet in force. We are still waiting for confirmation of when these provisions will become effective and the details about how exactly they will work in practice.
One of the key aims of the Act was ‘supporting people’ and we set out below the particular employment law points to note:
Statutory sick pay
Regulations which came into force on 13 March 2020 already amended the Statutory Sick Pay rules so that those who are self-isolating in accordance with the Government medical guidance are eligible to claim statutory sick pay (SSP).
The Government subsequently announced that SSP would be payable from day 1 of absence for coronavirus related reasons, rather than after the three “waiting days” (which is normally the position). The Act gives the Government power to make regulations to do this (and to do so with retrospective effect, for incapacity arising on or after 13 March 2020).
The Government also announced that employers with fewer than 250 employees would be able to recover SSP payments for a 14 day period for coronavirus related reasons. The Act gives HMRC the power to make regulations to achieve this (again with retrospective effect from 13 March 2020 onwards). However, the details remain vague and no draft regulations have been published.
Whilst we await the regulations that implement these provisions, we would recommend that all employers keep careful and accurate records of absences and SSP payments during this period.
Emergency Volunteering Leave
The second main development on the employment side is that the Act creates a new type of leave for employees and workers; emergency volunteering leave. The purpose is to enable employees and workers to leave their jobs and volunteer, for example in the NHS or social care.
A person acting as an emergency volunteer must have been approved by and been issued with an emergency volunteering leave certificate by a relevant authority (such as a local authority, an NHS Commissioning Board or the Secretary of State for Health and Social Care).
A volunteer can take volunteering leave for a period of two, three or a maximum of four consecutive weeks. This will be specified in the certificate. Individuals will be able to take one period of volunteering leave in each specific “volunteering period”. As things stand, initially, the volunteering period will be one single 16 week period.
The employee or worker must inform their employer in writing of their intention to take the leave at least three working days prior to the first day of absence and give their employer a copy of the emergency volunteering certificate. Employers cannot refuse to grant leave.
Emergency volunteering leave is unpaid, and employers do not have to pay wages during this period. Instead, volunteers will be compensated for any loss of earnings and travel and subsistence by the State.
Whilst on emergency volunteering leave, employees and workers are entitled to all their employment benefits (except pay) as if they had not been absent. They will also be entitled to return to the same job on no less favourable terms and conditions. Employees and workers who opt to take emergency volunteering leave are protected from any detriment as a result of doing so. In addition, any dismissal because an employee has taken this leave will be automatically unfair.
There are some exceptions to those who can take emergency volunteering leave including those who are employed by an employer with fewer than 10 staff.
Again, we are waiting some key details. We do not know whether payments for lost earnings will be based on actual earnings or subject to a cap or flat rate? How will this work in practice?
Beyond employment law, the powers granted by the Act are wide and “unprecedented in peacetime’. The powers in the Act generally expire automatically two years from the date of assent, with reviews by MPs in the House of Commons built in to take place every six months.
As we become aware of developments we will update you.
Please call the Brabners' Covid-19 helpline on 03330 433230.