Offering blood, toil, tears and sweat: Emergency Volunteers and the Law
Declan O’Dempsey
Tom Gillie
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.
Whatis (EVL)?
The 2020 Act creates EVL by section 8and Schedule 7. EVL is a period of unpaid volunteer leave, taking place duringprescribed periods, that will be compensated by a statutory scheme.
Whois eligible?
Workers,defined by section 230 Employment Rights Act 1996, may take EVL. They are employees under a contract ofemployment, or workers. Agency workers are also entitled to EVL detrimentprotection. They must be an emergency volunteer however (below).
Thegovernment’sguidance states that a furloughed employee can takepart in volunteer work or training, as long as she does not provide services toor generate revenue for, or on behalf of the employer’s organisation.
The following people are not entitledto take EVL:
Workers whose employer has headcount of“staff” of less than 10. “Staff” is not further defined by the CVA 2020. The socialpurpose of the legislation is to enable volunteering in a national crisis. So “staff” will probably be interpreted witha view to the effective operation of businesses during the outbreak and islikely to cover, any other person with a contract to assist a business torun, where the relationship is not that of an independent contractor andclient.
Crown employees; and House of Lords and Houseof Commons staff and their equivalents in the devolved democratic bodies.
Anyone employed under a contract of employmentin police service (service as a member of a constabulary maintained by virtueof an enactment, or service in any other capacity by virtue of which a personhas the powers or privileges of a constable). It does not include prisonofficers, however. (see s 200(2) ERA 1996).
Howmuch EVL can be taken?
Aworker may be absent from work on one period of leave for two, three or fourconsecutive weeks, taken once during a specified window (currently 16 weeks)from whenever Schedule 7 of the 2020 Act may come into force.
TheAct provides for two relevant periods of time: (1) the period of leave that anemployee may take, as of right, from work (two, three or four consecutiveweeks); (2) the window in which leave can be taken (the ‘volunteering period’which is defined by reference to periods of 16 weeks).
Thefirst volunteering period runs from the date the Schedule comes into force (tobe announced). Regulations issued bythe relevant national authority[1] inthe parts of the UK may provide for later volunteer periods. They must be 16 weeks long (unless regulationsspecify shorter). They must start after the end of a previous one, cannotoverlap, but there can be gaps between volunteer periods. A worker does nothave the right to be absent from work under this scheme more than once in eachvolunteering period[2]. There are likely to be debates as to how muchleave a worker ought to take in a business. The 2020 Act allows the governmentto call for volunteers in accordance with the predicted virus severity over afour-month period.
Indefault of these provisions, all leave will have to be a matter of agreementbetween 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 detrimentfor having taken the leave.
Whois an emergency volunteer?
An employer may only refuse a workerto take EVL if she is not eligible. A worker will only be an emergencyvolunteer if:
(i) she has a certificate issued by anappropriate 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.
InWales:
(a)the Welsh Ministers,
(b)a county council, or
(c)a county borough council.
(ii) thecertificate certifies that the worker has been approved by the authority as anemergency volunteer in health or social care, and will be acting as an emergencyvolunteer in health or social care from the date, and for the period, specifiedin the certificate (see above for details of the definitions of the relevantperiods).
(iii) theworker notifies her employer in accordance with Schedule 7 of the 2020 Act. Thismeans she must:
notify her employer in writing of her intention to be absent form work onleave 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 daysbefore the first day of the period of leave stated in the certificate.
(iv) she has not taken EVL already within thevolunteering period (see above).
Whathappens to an employee/worker’s rights and obligations during EVL?
Theperson taking EVL can be a worker, but paragraph 5 of Schedule 7 provides thatan employee who takes EVL is entitled during any period of leave, to thebenefit of all terms and conditions of employment which would have applied ifthe employee had not been absent. Theemployee is bound by any obligations arising under those terms and conditions,unless they are inconsistent with being absent from work on leave for theperiod specified in the certificate.
Anemployee who took leave would not be in breach of a term them to devote theirwhole time to the employer’s business.
Anemployee’s continuity of employment will not be broken by taking EVL.
Thisis because the phrase “terms and conditions of employment” is defined in thiscontext as including matters connected with the employee’s employment whetheror not they arise under the contract of employment. However, it does notinclude terms and conditions about remuneration.
Rightof return
Para6 provides for an employee’s right to return after EVL. They are entitled to return from leave to thejob in which they were employed before the absence.
Theirrights to seniority, pension and similar are preserved and must be as if theemployee had not been absent. They have the right to return on terms andconditions no less favourable than those which would have applied if never absent.
How does EVL affect remuneration?
Wagesand salary
EVL is unpaid leave. Employees cannotrely on the terms relating to remuneration, meaning wages or salary in thiscontext, during their EVL (paragraph 5 Schedule 7).
All workers can seek compensation forloss of earnings and for travelling and substance from the State if such lossesarise in consequence of acting as an emergency volunteer and would not havebeen suffered otherwise. Subsistence compensation may be vouchers and other benefitswhich may be used to pay for subsistence, whether or not their use is subjectto any limitations. The vouchers may therefore be subject to limitations onwhere they can be spent. The State arrangements for how compensation will beprovided must be laid before Parliament as soon as reasonably practicable (butthis has not happened yet). The arrangements for compensation will includeconditions and there will be a procedurefor making a claim; they will determine the amount and the manner of payment. Therewill be limits on the amount that a person is entitled to claim. When asked whether the amount would be at thefurlough employee’s level of pay the Minister did not answer the question butreferred the questioner to the Treasury.
Pensions
Paragraph7 (1) provides that if an employment-related benefit scheme[3]does not include an emergency volunteering rule, it is to be treated asincluding one. If a relevant term does not treat time when a worker is on EVL asit treats time when they are not, it is modified to treat EVL time as time atwork. 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
canall be modified.
Second,if a term confers a relevant discretion capable of being exercised so that timewhen a worker is on emergency volunteering leave is treated differently fromtime when they are not, the discretion cannot be exercised in that way.
Discretionscapable 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
aremodified in this way.
Contributionsmay be calculated during EVL on the basis of what the employee is paid by theemployer in respect of that time.
EVL detriment
TheAct of 2020 will prohibit the dismissal of an employee and detrimentaltreatment of emergency volunteers (see Part 3 Schedule 7) It creates a new s47Hin the Employment Rights Act 1996:
a worker has the right not to besubjected to a detriment by any act or deliberate failure to act by theiremployer on the grounds that the worker took, sought to take, EVL.
persons who benefit from rightsconferred on employees by Part 2 of Schedule 7 are entitled to protectionagainst detriment on the ground that they did so.
A worker is protected from suchdetriment on the grounds that the employer believed that the worker was likelyto take EVL.
Theright to return is confined to employees but a worker is protected fromdetriment for having taken EVL.
Onlyemployees are entitled to rights to maintain terms and conditions (para 5Schedule 7) and the right to return to work (para 6 Schedule 7). However refusal to permit an otherwiseongoing contract to continue or diminution of contract terms would probably beviewed as detriments to a worker. Termination of a worker’s contract becauseof EVL will be a detriment.
Employersmay argue that current rapid economic changes require changes to the terms on which suchworkers are employed. It may bedifficult to show that the ground of detriment was EVL. If a workforce had totake a pay cut during the EVL, the employee who took EVL cannot be required towork to the new pay but a comparable worker could be offered lower pay andmight struggle to show detriment.
EVL Dismissal
Detrimentsshort 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 104Hwhich provides for automatic unfair dismissal by reason of EVL.
Complaintsto the Employment Tribunal
Section48(1C) ERA 1996 will provide that the worker may present a complaint to an ETthat they have been subjected to a section 47H detriment and claim remedies asin whistleblowing detriment cases.
Ifa non employee successfully claims in respect of termination of their contract,section 48(8) will provide that their compensation must not exceed thecompensation that would be payable had they been an employee and had beendismissed for the reason specified in the new section 104H. This means no claims may be made for injuryto feelings (although claims for Basic Awards could be made) but the 2020 Actprovides that section 104H dismissals are not subject to the unfair dismissal cap.
EVLwill 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.
Contractingout
Section203(1)(a) ERA 1996 is amended. It is notpossible to contract out of the rights under Schedule 7 2020 Act (save for compromiseagreements/COT3 settlement agreements).
NorthernIreland is provided for in Part 4 of Schedule 7, and the Employment Rights(Northern Ireland) Order 1996 is modified to include Article 70G (protectionagainst detriment), and Article 135G (automatic unfair dismissal).
Agencyworkers
”Agencyworkers”, are defined as a worker who is supplied by a person (an “agent”) todo work for another (a “principal”) under a contract or other arrangements madebetween the agent and principal (see para 30 Schedule 7). They are entitled as workers to give noticeto the employer under para 1(2) of Schedule 7. If they do, and supply the certificate to the employer, the employer mustprovide copies of both notice and certificate to:
If the employer is the agent, to anyprincipals to whom the worker was to be supplied during the period specified inthe certificate;
If the employer is a principal, to tothe agent;
If the employer is neither agent nor aprincipal, to the agent and to any principals to whom the worker was to besupplied during the period specified in the certificate.
The agent, and any principals to whomthe worker was to be supplied during the period specified in the certificate (wherethey 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 ERA1996 or Article 70G in Northern Ireland)