COVID-19 Coronavirus Business Impact: Emergency Volunteering Leave

In this OnPoint we report on the right to take emergency volunteering leave which has been introduced in the United Kingdom in response to the COVID-19 pandemic.

Introduction

The Coronavirus Act 2020 (the “Act”) came into force on 25 March 2020. The Act includes provision for workers, including agency workers, who have been approved as emergency volunteers in health or social care, to take unpaid leave in order to volunteer during the current coronavirus pandemic.

Eligibility

All workers are eligible to take emergency volunteering leave where they have been approved as emergency volunteers in health or social care. There is no minimum service requirement for eligibility and workers are therefore entitled to it from the first day of their employment. Volunteering leave outside the scope of this new right will need to be taken with the agreement of the employer.

Exceptions

The main exception to this entitlement is the category of employees who work for businesses with fewer than 10 staff: these employees are not entitled to take emergency volunteering leave. There are also exceptions for Crown employees, anyone employed by a police service, and anyone working for legislative bodies. Regulations may specify further excluded categories of employee in future.

When and for how long can such leave be requested?

Notices of leave may be given by employees during an initial 16-week volunteering period from 25 March 2020. A further volunteering period may be specified by the Secretary of State. The period of leave which can be taken will be a single block of two, three or four consecutive weeks which must take place within a single 16-week volunteering period. An employee can only take one period of emergency volunteering leave within a volunteering period.

Procedural requirements

Employees will have to give at least 3 working days’ written notice of their intention to be absent from work. They will need to provide their employer with a copy of an “emergency volunteering certificate” issued by the NHS Commissioning Board, the Secretary of State for Health and Social Care or a local council.

Pay

Employees are not entitled to pay during a period of emergency volunteering leave. However, they are entitled to receive from their employer the benefit of all of other terms and conditions of employment as if they had not been absent. This includes employer pension contributions – consequently, the employer’s pension contributions will need to be based on the employee’s normal pay, but the employee’s pension contributions will be based on actual pay received during the period of emergency volunteering leave.

The Act requires that arrangements be made to compensate workers who take emergency volunteering leave for their loss of earnings and for travel and subsistence. This compensation will presumably be met by the Government. Details of these arrangements have not yet been announced, including the conditions an individual must meet in order to claim, and whether the compensation will be subject to a cap.

Protection for employees

Employers do not have the right to refuse to grant emergency volunteering leave. It is unlawful to subject an employee to a detriment for having taken emergency volunteering leave. It is also automatically unfair to dismiss an employee if they want to take emergency volunteering leave and there is no requirement of two continuous years’ service for such an unfair dismissal claim to be brought. There is no cap on the compensation that can be awarded in such an unfair dismissal claim.

On their return from emergency volunteering leave, employees are entitled to return to the job in which they were employed before the leave, on no less favourable terms and conditions.

Employees on furlough

It appears that employees may act as emergency volunteers if they have been “furloughed” in accordance with the Government’s Coronavirus Job Retention Scheme, without disqualifying the employer from reimbursement of the wage costs otherwise recoverable under that scheme. The guidance issued in relation to the Job Retention Scheme expressly indicates that employees can undertake unpaid voluntary work while on furlough.

Considerations for employers

Employers will wish to consider to what extent they publicise this entitlement to employees – whether or not in conjunction with the introduction of furloughing – and how they plan to discuss the timing and duration of emergency volunteering leave with employees in order to minimise any adverse impact on their business whilst not breaching the protections provided to employees availing themselves of this new right.