Published 2nd April 2020
Due to the vast amount of changes brought in during March, the Coronavirus Act 2020 was enacted to put in place emergency measures in response to the COVID-19 pandemic in the UK. Some of these measures will affect employment in ways such as:
- The Act modifies statutory sick pay (SSP)
- The Act creates emergency volunteering leave.
However, despite the Act receiving Royal Assent on the 25th March 2020 allowing most of the Act to come into force straight away; the modification to the SSP and the emergency volunteering leave require secondary legislation (these will be the regulations) to allow it to be enforceable so by enacting this Act, it provides the framework and the mechanism for the regulations to be created.
The Act modifies statutory sick pay (SSP) by allowing SSP to be paid from the first day of sickness or self-isolation which can now be funded by the HM Revenue and Customs (HMRC). These provisions can be found in section 39–41 of the new Act.
- Section 40 of the new Act gives the Government the power to make regulations to mean s 155 (1) of the Social Security Contributions and Benefits Act 1992 (SSCBA 1992) will not apply when the incapacity to work is related to the coronavirus.
- Section 40 (4) allows such regulations which may be made to have a retrospective effect meaning it will apply to employees who are lack capacity to work due to the coronavirus before or after the 13th March 2020.
- Section 39 of the new Act will insert s 159B into the SSCBA 1992 giving the HMRC the ability to pay employers payment of SSP to the employee when the SSP is related to the coronavirus. It will be for the HMRC to make regulations setting out the extent and manner of this funding and like above, these regulations may be retrospective of 13th March 2020.
The Act creates emergency volunteering leave which will allow emergency volunteers in health or social care to take unpaid time off work and receive compensation for the loss of earnings. This is aimed at workers who want to volunteer temporarily in the NHS or the social care sector. These provisions can be found in sections 8 and 9 and Schedule 7 of the new Act.
- Schedule 7 allows an ‘appropriate authority’ such as a local authority, an NHS Commissioning Board or the Secretary of State for Health and Social Care to certify an individual to act as an emergency volunteer in health or social care. This individual will then be able to take leave under the new Act provided they give their employer three working days’ notice and produces their certificate. This certificate will specify the period of leave as being either two, three or four weeks long.
- There is no provision for employers to refuse leave under the new Act and employees can take one period of leave in each ‘volunteering period’.
- However, the right to emergency volunteering leave does not include a right to be paid meaning there is no obligation on the employer to pay the individual their wage during the period of leave.
- Paragraph 5 of Schedule 7 does provide that an employee on emergency volunteering leave is still entitled to all the benefits of employment (expect remuneration) which they are entitled too if they are not absent.
- Paragraph 6 of Schedule 7 provides that an employee will be entitled to return from emergency volunteering leave to the job they were in before the leave with no less favourable terms and conditions.
- Section 9 of the new Act requires the Secretary of State to establish arrangements for paying compensation to volunteers in respect of loss of earning, travel and subsistence expenses.
- Part 3 of Schedule 7 inserts section 47H and 104H into the Employment Rights Act 1996 which will mean it will be unlawful to subject an employee to a detriment for having taken or sought to take emergency volunteering leave. Equally, it will be automatically unfair to dismiss an employee for the same reason.
Both the SSP modifications and the right to emergency volunteering leave are temporary.
- Section 89 of the new Act provides temporary provisions that the Act will automatically expire after two years, this is known as a ‘sunset clause’.
- Section 89 (2) states however, the protection from any detriment and/or dismissal for having taking emergency volunteering leave and the protection of employee benefits are not temporary and will not automatically expire.