Covid-19:  Offering blood, toil, tears and sweat: Emergency Volunteers and the Law

Over 750,000 volunteers have signed up to the government’s scheme to assist the NHS and social services during the coronavirus outbreak. For those coming from another job, what employment protection do these volunteers have? The Minister introduced this aspect of the emergency legislation, the Coronavirus Act 2020, by saying “The Bill protects the income and the employment status of those who volunteer in the health and social care system. Volunteers will play a critical role in relieving the pressure on frontline clinicians and social care staff”. Sections 8, Schedule 7 and section 9 provide for ‘emergency volunteer leave’ (EVL). In this blog, the seventh in a Covid-19 series, Declan O’Dempsey and Tom Gillie answer the following pressing questions: What is EVL? Who may take it, and what should employers do if staff request to do so?  The provisions of the Act are not in force at the time of writing. The situation is however a very fast moving one.

What is (EVL)?

The 2020 Act creates EVL by section 8 and Schedule 7. EVL is a period of unpaid volunteer leave, taking place during prescribed periods, that will be compensated by a statutory scheme.

Who is eligible?

Workers, defined by section 230 Employment Rights Act 1996, may take EVL.  They are employees under a contract of employment, or workers. Agency workers are also entitled to EVL detriment protection. They must be an emergency volunteer however (below).

The government’s guidance states that a furloughed employee can take part in volunteer work or training, as long as she does not provide services to or generate revenue for, or on behalf of the employer’s organisation.

The following people are not entitled to take EVL:

  • Workers whose employer has headcount of “staff” of less than 10. “Staff” is not further defined by the CVA 2020. The social purpose of the legislation is to enable volunteering in a national crisis.  So “staff” will probably be interpreted with a view to the effective operation of businesses during the outbreak and is likely to cover, any other   person with a contract to assist a business to run, where the relationship is not that of an independent contractor and client. 
  • Crown employees; and House of Lords and House of Commons staff and their equivalents in the devolved democratic bodies.
  • Anyone employed under a contract of employment in police service (service as a member of a constabulary maintained by virtue of an enactment, or service in any other capacity by virtue of which a person has the powers or privileges of a constable). It does not include prison officers, however. (see s 200(2) ERA 1996).   

How much EVL can be taken?

A worker may be absent from work on one period of leave for two, three or four consecutive weeks, taken once during a specified window (currently 16 weeks) from whenever Schedule 7 of the 2020 Act may come into force.

The Act provides for two relevant periods of time: (1) the period of leave that an employee may take, as of right, from work (two, three or four consecutive weeks); (2) the window in which leave can be taken (the ‘volunteering period’ which is defined by reference to periods of 16 weeks).

The first volunteering period runs from the date the Schedule comes into force (to be announced).   Regulations issued by the relevant national authority[1] in the parts of the UK may provide for later volunteer periods.  They must be 16 weeks long (unless regulations specify shorter). They must start after the end of a previous one, cannot overlap, but there can be gaps between volunteer periods. A worker does not have the right to be absent from work under this scheme more than once in each volunteering period[2].  There are likely to be debates as to how much leave a worker ought to take in a business. The 2020 Act allows the government to call for volunteers in accordance with the predicted virus severity over a four-month period.

In default of these provisions, all leave will have to be a matter of agreement between the employer and employee.  Should there be no agreement and leave is taken to act as a volunteer, the employee will have no specific protection against dismissal or detriment for having taken the leave.

Who is an emergency volunteer?

An employer may only refuse a worker to take EVL if she is not eligible. A worker will only be an emergency volunteer if:

(i) she has a certificate issued by an appropriate authority, which means, in England:

(a) the Secretary of State for Health and Social Care,

(b) the National Health Service Commissioning Board,

(c) a county council,

(d) a district council for an area for which there is no county council,

(e) a London borough council,

(f) the Common Council of the City of London, or

(g) the Council of the Isles of Scilly.

In Wales:

(a) the Welsh Ministers,

(b) a county council, or

(c) a county borough council.

(ii) the certificate certifies that the worker has been approved by the authority as an emergency volunteer in health or social care, and will be acting as an emergency volunteer in health or social care from the date, and for the period, specified in the certificate (see above for details of the definitions of the relevant periods).

(iii) the worker notifies her employer in accordance with Schedule 7 of the 2020 Act. This means she must:

  • notify her employer in writing of her intention to be absent form work on leave for the period specified in the emergency volunteering certificate;
  • Provide a copy of the certificate to her employer;
  • Provide the certificate and written notice no later than 3 working days before the first day of the period of leave stated in the certificate.

(iv) she has not taken EVL already within the volunteering period (see above).

What happens to an employee/worker’s rights and obligations during EVL?

The person taking EVL can be a worker, but paragraph 5 of Schedule 7 provides that an employee who takes EVL is entitled during any period of leave, to the benefit of all terms and conditions of employment which would have applied if the employee had not been absent.  The employee is bound by any obligations arising under those terms and conditions, unless they are inconsistent with being absent from work on leave for the period specified in the certificate.

An employee who took leave would not be in breach of a term them to devote their whole time to the employer’s business.

An employee’s continuity of employment will not be broken by taking EVL.

This is because the phrase “terms and conditions of employment” is defined in this context as including matters connected with the employee’s employment whether or not they arise under the contract of employment. However, it does not include terms and conditions about remuneration.  

Right of return

Para 6 provides for an employee’s right to return after EVL.  They are entitled to return from leave to the job in which they were employed before the absence.

Their rights to seniority, pension and similar are preserved and must be as if the employee had not been absent. They have the right to return on terms and conditions no less favourable than those which would have applied if never absent.

How does EVL affect remuneration?

Wages and salary

EVL is unpaid leave. Employees cannot rely on the terms relating to remuneration, meaning wages or salary in this context, during their EVL (paragraph 5 Schedule 7).  

All workers can seek compensation for loss of earnings and for travelling and substance from the State if such losses arise in consequence of acting as an emergency volunteer and would not have been suffered otherwise. Subsistence compensation may be vouchers and other benefits which may be used to pay for subsistence, whether or not their use is subject to any limitations. The vouchers may therefore be subject to limitations on where they can be spent. The State arrangements for how compensation will be provided must be laid before Parliament as soon as reasonably practicable (but this has not happened yet). The arrangements for compensation will include conditions  and there will be a procedure for making a claim; they will determine the amount and the manner of payment. There will be limits on the amount that a person is entitled to claim.  When asked whether the amount would be at the furlough employee’s level of pay the Minister did not answer the question but referred the questioner  to the Treasury.

Pensions

Paragraph 7 (1) provides that if an employment-related benefit scheme[3] does not include an emergency volunteering rule, it is to be treated as including one. If a relevant term does not treat time when a worker is on EVL as it treats time when they are not, it is modified to treat EVL time as time at work. Terms relating to

(a) membership of the scheme,

(b) the accrual of rights under the scheme, or

(c) determination of the amount of a benefit payable under the scheme

can all be modified.

Second, if a term confers a relevant discretion capable of being exercised so that time when a worker is on emergency volunteering leave is treated differently from time when they are not, the discretion cannot be exercised in that way.

Discretions capable of affecting—

(a) membership of the scheme,

(b) the accrual of rights under the scheme, or

(c) the determination of the amount of a benefit payable under the

Scheme

are modified in this way.

Contributions may be calculated during EVL on the basis of what the employee is paid by the employer in respect of that time.   

EVL detriment  

The Act of 2020 will prohibit the dismissal of an employee and detrimental treatment of emergency volunteers (see Part 3 Schedule 7) It creates a new s47H in the Employment Rights Act 1996:

  • a worker has the right not to be subjected to a detriment by any act or deliberate failure to act by their employer on the grounds that the worker took, sought to take, EVL. 
  • persons who benefit from rights conferred on employees by Part 2 of Schedule 7 are entitled to protection against detriment on the ground that they did so. 
  • A worker is protected from such detriment on the grounds that the employer believed that the worker was likely to take EVL.

The right to return is confined to employees but a worker is protected from detriment for having taken EVL.

Only employees are entitled to rights to maintain terms and conditions (para 5 Schedule 7) and the right to return to work (para 6 Schedule 7).  However refusal to permit an otherwise ongoing contract to continue or diminution of contract terms would probably be viewed as detriments to a worker. Termination of a worker’s contract because of EVL will be a detriment.

Employers may argue that current rapid economic changes  require changes to the terms on which such workers are employed.  It may be difficult to show that the ground of detriment was EVL. If a workforce had to take a pay cut during the EVL, the employee who took EVL cannot be required to work to the new pay but a comparable worker could be offered lower pay and might struggle to show detriment. 

EVL Dismissal

Detriments short of dismissal are dealt with under section 47H but an employee’s dismissal, within the meaning of Part 10 ERA 1996 can only be dealt with under section 104H which provides for automatic unfair dismissal by reason of EVL.

Complaints to the Employment Tribunal

Section 48(1C) ERA 1996 will provide that the worker may present a complaint to an ET that they have been subjected to a section 47H detriment and claim remedies as in whistleblowing detriment cases.

If a non employee successfully claims in respect of termination of their contract, section 48(8) will provide that their compensation must not exceed the compensation that would be payable had they been an employee and had been dismissed for the reason specified in the new section 104H.  This means no claims may be made for injury to feelings (although claims for Basic Awards could be made) but the 2020 Act provides that section 104H dismissals are not subject to the unfair dismissal cap.   

EVL will be treated like paternity pay and other stipulated types of pay for  sections 88, and 89 ERA 1996  when calculating pay during a notice period, whether there are normal working hours or not. 

Contracting out

Section 203(1)(a) ERA 1996 is amended.  It is not possible to contract out of the rights under Schedule 7 2020 Act (save for compromise agreements/COT3 settlement agreements).

Northern Ireland is provided for in Part 4 of Schedule 7, and the Employment Rights (Northern Ireland) Order 1996 is modified to include Article 70G (protection against detriment), and Article 135G (automatic unfair dismissal).

Agency workers

”Agency workers”, are defined as a worker who is supplied by a person (an “agent”) to do work for another (a “principal”) under a contract or other arrangements made between the agent and principal (see para 30 Schedule 7).  They are entitled as workers to give notice to the employer under para 1(2) of Schedule 7.  If they do, and supply the certificate to the employer, the employer must provide copies of both notice and certificate to:

  • If the employer is the agent, to any principals to whom the worker was to be supplied during the period specified in the certificate;
  • If the employer is a principal, to to the agent;
  • If the employer is neither agent nor a principal, to the agent and to any principals to whom the worker was to be supplied during the period specified in the certificate.

The agent, and any principals to whom the worker was to be supplied during the period specified in the certificate (where they would not otherwise be the worker’s employer) is the employer.

The agency worker is entitled not to be subjected to a detriment (section 47H ERA 1996 or Article 70G in Northern Ireland)

3 April 2020

Tom Gillie and Declan O’Dempsey

Cloisters

Other blogs in this series are available here:


Covid-19: Critical workers refusing work – What if everyone is being reasonable?  
Schona Jolly QC 26 March 2020
Covid-19: Pay for working parents forced to look after their children Rachel Crasnow QC 27 March 2020
Covid-19: Furlough and job retention: Key issues for Employment Lawyers   Daniel Dyal 30 March 2020
Covid-19:  Is Facial Recognition Technology in the workspace the answer to social distancing or discriminatory? Robin Allen QC and Dee Masters 31 March 2020
Covid-19: Legal implications of identifying immune workers Rachel Crasnow QC 1 April 2020
Covid-19: An employer’s guide to homeworking Tom Gillie, Ruaraidh Fitzpatrick and Catherine Casserley 2 April 2020

[1]  

(a) in relation to England and Wales and Scotland, the Secretary of State;

(b) in relation to Northern Ireland, the Secretary of State or the

Department for the Economy in Northern Ireland.

[2] See Schedule 7 para 1(5) CVA 2020.

[3] (a) in relation to England and Wales and Scotland, has the meaning given by paragraph 7 of Schedule 5 to the Social Security Act 1989;

(b) in relation to Northern Ireland, has the meaning given by paragraph

7 of Schedule 5 to the Social Security (Northern Ireland) Order 1989

(S.I. 1989/1342 (N.I. 13)). These can cover some self employed persons.