The Coronavirus Act has received Royal Assent and is in force

The Coronavirus Act has received Royal Assent and has come into force. The Act sets out proposed emergency legislative measures to address the Coronavirus disease (Covid-19) outbreak.

The legislation will be time-limited for two years, however, it will neither be necessary nor appropriate for all of the measures come into force immediately. Instead, many of the measures in this Act can be commenced from area to area and time to time, so as to ensure that the need to protect the public’s health can be aligned with the need to safeguard individuals’ rights. These measures can subsequently be suspended and then later reactivated, if circumstances permit, over the lifetime of the Act.

The lifetime of the Act can itself be ended early, if the best available scientific evidence supports a policy decision that these powers are no longer needed. It is also possible to extend the lifetime of the Act for a further temporary period, again if it is prudent to do so.

The two key measures impacting directly on employment are set out below.

1. Emergency Volunteers

Sections 8 and 9, together with Schedule 7, introduce a new form of unpaid statutory leave, for emergency volunteers and powers to establish a compensation scheme to compensate for some loss of earnings and expenses incurred by volunteers.

These measures are designed to enable relevant appropriate authorities (local authorities and relevant health and social care bodies) to maximise the pool of volunteers that they can draw on to fill capacity gaps by addressing two primary deterrents to participation: risk to employment and employment rights, and loss of income.

Volunteers and leave

A person is an “emergency volunteer” if an appropriate authority (set out in Schedule 7 clause 4) certifies that: (a) the person has been approved by the authority as an emergency volunteer in health or social care; and, (b) has acted as an emergency volunteer in health or social care for a period for which emergency volunteering leave (EVL) could have been taken.

A person acting as an emergency volunteer will be entitled to receive compensation payments from public funds made available by Parliament for loss of earnings but only if the person has suffered a loss of earnings.

The entitlement to EVL does not apply to a person who is employed by an undertaking which has a staff headcount of less than 10 (this and other exceptions are set out in Schedule 7 clause 3, e.g. employment in the police service). Where the entitlement does apply:

• A worker is entitled to be absent from work on leave for the period specified in an ‘emergency volunteering certificate’ as long as, no later than 3 working days before the first day of the period specified in the certificate, the worker notifies their employer in writing of their intention to be absent from work on leave for the period specified in the certificate, and provides their employer with a copy of the certificate.
• An “emergency volunteering certificate” is a document issued by an appropriate authority certifying that the worker has been approved by the authority as an emergency volunteer in health or social care and will be acting in that capacity.
• The period specified in the certificate must be a period of (a) two consecutive weeks, (b) three consecutive weeks, or (c) four consecutive weeks, and must begin and end in the same volunteering period. A worker may not be absent from work more than once in each volunteering period.

Emergency volunteer rights

The associated rights when taking EVL are as follows:

• Employees will be entitled to the benefit of all of the terms and conditions of employment which would have applied if the employee had not been absent, but with the exception of terms and conditions relating to remuneration.
• Employees will have the right to right to return from leave to the job in which they were employed before the absence.
• If an employment-related pensions benefit scheme does not include an emergency volunteering rule, it is to be treated as including one, meaning that time when the person is on EVL is treated as time when they are not, i.e. the period of absence must have no effect on their pension, and exercising a discretion under the scheme while on EVL cannot be treated differently as it would be if at work (the rights are set out in detail in Schedule 7 clause 7).
• ‘Workers’ (employees and those contracted to provide services personally) have the right not to suffer a detriment for asserting their statutory right to EVL, i.e. seeking to take or taking EVL or where the employer believed that the worker was likely to take EVL. A detriment for a worker contracted to provide services personally (not an employee) includes where their contract is terminated because of asserting their statutory right.
• Employees have the right not to be dismissed for asserting their statutory right, i.e. seeking to take or taking EVL or where the employer believed that the worker was likely to take EVL. No qualifying period applies to claim for unfair dismissal under the EVL provisions and there is no limit to the amount of compensation that can be awarded.

Agency workers

Under Schedule 7 Part 5, where a worker gives notice to take EVL along with the necessary certificate to the employer, the employer must as soon as reasonably practicable provide copies of them to the organisation to whom the worker is being supplied, if the employer is the agent, or to the agent if the organisation to whom the worker is being supplied is the employer.

 2. Statutory Sick Pay

Sections 39 and 40 allow for amendments to the current Statutory Sick Pay system as it “does not provide the flexibility required for the response to managing and mitigating the effects of a Covid-19 pandemic”.

Recovery of SSP payments for certain employers

Under Section 39, the Secretary of State is given the power to make regulations regarding the recovery from HMRC of additional payments of SSP by certain employers for absences related to Covid-19. This is because the ability to recover SSP is important so that the relevant employers are supported in a period when their payments of SSP are likely to escalate. It is also necessary to ensure that employees are incentivised not to attend work when advised not to do so for reasons of health. Under Section 39 (7) the regulations made by the Secretary of State may have retrospective effect in relation to a day of incapacity for work that falls on or after 13 March 2020. Note that it was previously indicated in the Budget Report that recovery of SSP would only apply to employers with fewer than 250 employees and would be limited to two weeks of SSP payment, but this is not stated in the Act, so the regulations are awaited to be able to understand the full extent of the scheme.

Temporary suspension of waiting days for SSP

Ordinarily, statutory sick pay is not payable for the first three days of sickness. These are referred to as “waiting days”.  As this may discourage people from taking sick days in order to prevent the spread of covid-19, Section 40 allows for the Secretary of State to make regulations to temporarily suspend the waiting days rule for those employees who are absent from work due to covid-19, meaning that SSP is payable from day one. Under Section 40(4) the regulations made by the Secretary of State may have retrospective effect in relation to a day of incapacity for work that falls on or after 13 March 2020.