(co-written by Adam Wheal, trainee solicitor, and Claire Merritt, Partner)

Under the new Coronavirus Act 2020 employees and workers are entitled to emergency volunteering leave. This right is scheduled to remain in force for two years. This blog discusses the interesting new provision contained in the Act entitling employees and workers to emergency volunteering leave, which a large number of people have already used to volunteer their help to the health and social care services in the fight against COVID-19.

Coronavirus Act 2020 – What is emergency volunteering leave?

Emergency volunteering leave is a temporary form of statutory unpaid leave for employees and workers who wish to volunteer to support essential health and social care services during the Coronavirus pandemic.

Entitlement to emergency volunteering leave is contained in Schedule 7 of the Coronavirus Act 2020.

Entitlement to take the leave

As stated above, employees and workers are entitled to emergency volunteering leave, except those who:

• work for a business with less than 10 staff;
• are civil servants;
• work in the legislature;
• work in the police force.

Provided the above exceptions do not apply, the individual must give 3 working days’ notice in writing to the employer of their intention to be absent for the period specified in their “emergency volunteering certificate” and also provide their employer with a copy of such certificate.

What is the emergency volunteering certificate?

The legislation defines the emergency volunteering certificate as a document which is issued by an “appropriate authority” which, in relation to England, can be:

• the Secretary of State for Health and Social Care;
• the National Health Service Commissioning Board;
• a county council;
• a district council for an area for which there is no county council;
• a London borough council;
• the Common Council of the City of London; or
• the Council of the Isles of Scilly.

How long can Emergency Volunteering Leave last?

The leave has to be for a period of two, three or four weeks, and must begin in the same “volunteering period.” The legislation defines a volunteering period as a period of 16 weeks.

Further, an individual can only take one block of volunteering leave in any 16-week period.

Do volunteers receive pay, pension and bonus etc?

The legislation states that individuals are entitled to the benefit of all the terms and conditions of employment during the period of leave which would have applied normally. However, “terms and conditions” does not include remuneration payable to the employee by way of wages or salary, and so when an individual is on volunteering leave they will not be paid their normal pay.

However, non-cash benefits will certainly fall within the remit of terms and conditions such as accrual of annual leave and certain company benefits etc.

There are specific provisions relating to pensions which imply emergency volunteering rules into employment related schemes so that employees receive pension contributions they would have done had they not been absent.

In relation to whether the employee receives a bonus, this will depend on the wording of the contract. In circumstances where the employee is not contractually entitled to always receive a bonus as part of their pay, it is arguable that they can continue to receive a bonus.

These arrangements are reminiscent of the pay arrangements around maternity leave.

What protection do the volunteers get?

Schedule 7 inserts new provisions into the Employment Rights Act 1996, which make it unlawful to subject an individual to a detriment because they have exercised their right to take emergency volunteering leave.

There is also protection to individuals against dismissal. If an employer dismisses someone because they have decided to take emergency volunteering leave, this will be automatically unfair. Similarly, an automatic unfair dismissal will arise if an individual is made redundant for reasons connected with their volunteering leave. Unlike unfair dismissal, the individual does not need two years’ service in order to bring the claim, and the compensation they could receive is uncapped.

If you would like further information regarding the emergency volunteering leave provisions, please do contact a member of the Employment team.