The Coronavirus Act 2020 has now been passed by Parliament in the UK and whilst it awaits implementing legislation to bring it into force this is clearly coming very soon. This note focuses on one aspect of the legislation which we think will have significant effect for employers who are already being challenged by the new landscape. The Emergency Volunteering Leave Scheme (the “Scheme”) provides for employees and workers to take time off work to work as emergency volunteers. This note looks at the Scheme, the obligations an employer owes to staff who wish to volunteer and some likely tricky issues which could come up.
The Emergency Volunteering Leave Scheme
The details of the Scheme are set out in Schedule 7 of the Coronavirus Act 2020. A worker is entitled to give no less than three working days’ notice to the employer in writing that they will be absent for the purposes of the Scheme. The notice will specify the period of absence and must be provided together with a copy of an emergency volunteering certificate. This is a document which will be issued by a specified authority which will include a National Health Service Commissioning Board, a County Council, or a London Borough Council, for example. The certificate will confirm that the individual has been approved as an emergency volunteer and will be acting as such in the period specified in the certificate. The volunteering period will be either two, three or four consecutive weeks. A volunteer can only do one such stint in any designated 16 week period. The first designated period will run from a date which is yet to be specified. The right applies to all workers (i.e. there is no qualifying period of service) and to almost all employers. The most relevant exception, for the purposes of this note, is that employers with fewer than ten staff are excluded.
Employers’ Duties towards workers who wish to volunteer
During the period of absence the volunteer will remain entitled to the benefit of all the terms of employment which would have applied if they had not been absent and similarly will be bound by the terms of their contract. This excludes any terms relating to remuneration. The legislation clarifies that only sums payable to an employee by way of wages or salary are remuneration. This framework of course is familiar to employers from the maternity leave provisions, for example, and so presumably case law interpreting what amounts to “remuneration” will apply equally to volunteers. Non-cash benefits are certainly going to continue and in some circumstances bonuses may be payable. Child care vouchers may be viewed as remuneration but that is not entirely clear. There are specific provisions relating to pensions which imply an emergency volunteering rule into employment related benefit schemes.
Employment terms which are inconsistent with the volunteering work being done by the employee are not binding on the individual in respect of that work. We will need to see if that is a real issue, but presumably a volunteer delivering a competitor’s products to vulnerable people is not going to find that they could be in breach of their contract of employment.
A volunteer has the right to return to the job in which they were employed before the absence and their seniority pension and similar rights must be unaffected by the period of absence. Likewise their terms and conditions must be no less favourable as a result of the absence. Again, employers will be very familiar with these rights from the rights applicable to those taking maternity leave and in particular returning after a period of ordinary maternity leave. One would hope that for a short period of absence (a maximum of four weeks) there will be relatively little difficulty slotting an individual back into their job. However if there is a dispute presumably the courts would look to the maternity provisions (which after all apply to rather longer periods of absence). Blundell indicates that the issue is not simply a matter of looking at the contract and the job should be as near as possible the same one that the individual was doing before they went off.
There are protections for volunteers and those looking to be volunteers and so employers need to be aware of the rights of volunteers. First, a worker must not be subjected to any detriment by any act or deliberate failure to act by the employer on the grounds that either (1) the individual was a volunteer or looking to become a volunteer or (2) the employer believed the individual was likely to volunteer. There is similar protection against the dismissal of a worker. For an employee such a dismissal requires no period of continuous service, and is automatically unfair. There is no cap on the unfair dismissal damages. Similarly (and probably very importantly) an employee who is made redundant for reasons connected with their involvement (or likely involvement) with the Scheme, is viewed as being automatically unfairly dismissed too.
Potential problem areas
First, the issue which will strike most employers is that three working days is precious little time to prepare for the absence from work of a key member of staff, especially since there is no mechanism by the employer to delay the period of leave, unlike, for example parental leave. Therefore we suggest that employers make clear that periods for volunteering under the Scheme will be supported but that workers should let employers know if they are applying to be volunteers so that appropriate arrangements can be made to cover work without undue disruption to their colleagues.
Of course an employer may take a different approach and encourage its employees or some of them to apply to be volunteers. It has been widely reported that Qantas in Australia has taken a creative approach by enabling staff to work for another organisation and helping with virus related work. If the employer is facing over capacity and wants to think laterally this may be a very laudable approach to take.
The right applies to anyone who is a worker. This is defined in the legislation by reference to s230 Employment Rights Act 1996 which is the standard definition and which broadly catches anyone who is an employee and anyone who is working for someone else and who is not genuinely self-employed and running their own business. There are special provisions which extend this Scheme to agency workers. Given that there is significant ongoing litigation (Uber anyone?) about who is or is not a worker this seems to invite further litigation on this subject. Somewhere near you a group of Uber workers are planning to submit volunteering applications as you read this note. Employers will have to tread carefully on this subject but we anticipate the fact that many workers may be working to less than full capacity at the moment, and that this is a short absence only will mean such legal points will generally be moot ones in the context of the Scheme.
What happens if the employee is already under notice when they come to the employer and say they are going to be a volunteer? In such circumstances the employer’s obligation to continue paying notice pay is not interrupted. Schedule 7 provides that the employer will continue to be liable for notice payments to the member of staff during the volunteering period. How this will interact with any payments to be made to the volunteers for their time by the specified authority is entirely unclear. If someone is already under notice when they first reveal an intention to be a volunteer then that notice is very unlikely to be seen to be a detriment imposed by the employer.
It is going to be a more difficult situation where the employer is going through a collective consultation process for example and employees are applying to be volunteers at the same time. Employers may be concerned about the risks of making those staff redundant and of course that in turn may encourage others to apply or to assert loudly that they are thinking of applying. In such circumstances the employer needs to be very clear, if it proceeds to make redundancies, that the need for the redundancies and the identification of the individuals to be made redundant had nothing to do with the desire to volunteer for the Scheme. It would make it riskier for the employer to dismiss staff without having articulated the rationale for selecting particular individuals who also happened to be volunteers.
What happens if the employee becomes sick during their period of volunteering? Well the employer is not obliged to provide “ remuneration” and, in the context of maternity leave it has been decided that sick pay is “remuneration” and we think the courts will take the same approach here. On that basis the employer is not obliged to provide sick pay to an employee who becomes ill for any reason on emergency volunteering leave. Obviously an employer may view it as the right thing to do, to provide financial support, especially if the pay for being a volunteer is conditional on the individual actually working. Conversely we think that the employee is obliged to tell the employer that they are sick, because the obligations set out in their contract with the employer continue to apply. Most employers have such a clause in their contracts and we consider this will clearly continue to operate. Employers will want to know if their staff are sick as it will help with planning and pastoral care, which is obviously important at a time such as this. We think it is unlikely that an employer’s duties of health and safety would continue to apply during any period of service under the Scheme but the contractual benefits would, and so, for example an employee may be able to use the employer’s private medical scheme for injuries suffered whilst volunteering.
It is not clear what happens if the employee bails out on the Scheme part way through a period. This could be for a whole range of issues, from a family member getting sick to concerns about the risks of contracting the virus from the volunteering work, or because the employee themselves gets sick to second thoughts about leaving colleagues to carry an increased work load. We have no details as yet as to how this would play out and whether an employer could say to a volunteer “you are bound by your notice to me, and so I cannot be criticised for not paying you or having you back to work until that period ends” or whether this response would be a form of unlawful detriment. We hope that this is an unlikely scenario but one that an employer should think about carefully if it arises in practice.