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The government has introduced the Coronavirus Act 2020 (the “Act”) to provide emergency measures in response to the COVID-19 pandemic. From an employment perspective the new law brings in two relevant provisions: (i) changes to Statutory Sick Pay (SSP) rules and (ii) introduction of the emergency volunteer leave. 

On 4 April 2020, the government has issued the updated guidance on furlough under the new Coronavirus Job Retention Scheme (‘the Guidance’), including changes related to SSP and EVL. 

Below there is an attempt to summarize the key points.

For support from a professional, reliable employment law specialists, contact us today or visit our For Employers page.

1. Statutory Sick Pay (SSP)

The current position

Under the Social Security Contribution and Benefits Act 1992 (SSCBA) a person is entitled to SSP provided they meet the qualifying conditions, namely:

  1. they must be an employee, not a worker or self-employed (agency workers are deemed to be employees); 
  2. they must earn an average of at least £118 per week; and 
  3. there must be at least four days of ‘period of inactivity’ (PIW), including Sundays and bank holidays during which they are unable to work. 

SSP is currently £94.25, rising to 95.85 from 6th April 2010 and is paid for up to 28 weeks. The employer starts paying SSP from the fourth day, the first 3 days within the PIW are called 'waiting days'. 

Under the terms of the employment contract, a person may be entitled to contractual company sick pay. This may provide that they will receive their normal salary (instead of SSP) or they will receive their normal salary less the amount of SSP. It’s worth checking the terms of contract and where these terms or policy are unclear, legal advice should be sought. 

What has changed 

According to the new regulations, the government has removed the 3 waiting days period for SSP and now employees can claim SSP from the first day of sickness (rather than from day four). The change is applicable only where the employee’s absence is related to coronavirus. No regulation in relation to how this change shall be implemented have been passed yet, but this measure has retrospective effect to apply from 13 March 2020 onwards. 

The Act also states that funding would be available to the employers for the coronavirus related SSP that they have paid to their employees. Again, regulations are awaited confirming the extent of the funding and the mechanism through which businesses can claim a refund of SSP. However, the government confirmed that employers with fewer than 250 employees will be able to claim funding for up to two weeks’ SPP per eligible employee arising on or after 13 March 2020.

Under the new updated furlough Guidance, employees in receipt of SSP, will continue to receive these payments and will not be able to be furloughed. However, after their sick leave ends and they return to work, the employees can be furloughed. It is not explicitly explained what happens if an employee becomes sick while on furlough. As the Guidance specify that the employees will retain their SSP entitlements, it may be inferred that the sick employee is entitled to SSP. The guidance leaves some unanswered questions, though. It is not clear, for instance whether the sickness automatically interrupts the furlough or whether the employer is still entitled to claim the grant while the employee is sick. It is hoped new guidance will clarify these points.

2. Emergency Volunteer Leave (EVL)

The Act has created a new statutory right for workers to take emergency volunteering leave (“EVL”). This allows workers to leave their job and volunteer temporarily in the health and social care sector. 

I) How does it work

The worker wishing to take the EVL should produce:

► an “emergency volunteering certificate” (“EVC”) issued by an ‘appropriate authority’ such as local authority, the NHS Commissioning Board or the Department of Health. The EVC specifies that the worker has been approved as emergency volunteer, the starting date and the period of the volunteering. 

► a three working days’ notice

In addition, the worker should be eligible, namely should not be employed by the exempted categories such as businesses with fewer than ten workers, the Crown, the Parliamentary, the police, the military. 

The employer consent is not required for an employee to commence EVL.

II) Period of EVL 

The length of the EVL (and stated in EVC) is made up of two, three or four weeks. The EVL need to be fit into a “volunteering periods” set by the government. The initial volunteering period will be 16 weeks. Subsequent volunteering periods can then be set by the Secretary of State. Each employee is only permitted to take one period of EVL during each ‘volunteering period’.

III) Employee’s rights

During the EVL, the workers will preserve their rights, save for the right to remuneration (which is defined in the Act as wages or salary). They will be entitled to the benefit of and be bound by all the terms and conditions of employment that would otherwise apply. 

Workers will also have the right to return to the same job and on the same terms and conditions they have had before the leave and on no less favourable terms. 

The Act ensures that the worker’ s pension rights are the same as if the employee was working normally (including continued accrual and calculation of benefits). During periods of EVL, the employers are required to make contributions to the relevant scheme based on the employee’s normal pay, prior to taking EVL. On the other hand, the employees’ contributions during the period of EVL will be based on their actual earnings during the period of EVL.

It is worth noticing an additional protection from detriment and dismissal for taking emergency leave. By the same token, the Employment Rights Act 1996, will be varied to such extent that a dismissal will be deemed to be automatically unfair and the compensation for such a claim is uncapped. The employees do not need to have two years’ employment in order to bring a claim for unfair dismissal in these circumstances. 

The EVL is an unpaid leave. However, compensation will be established by the Secretary of State for Health and Social Care. The workers taking EVL will be entitled to compensation for loss of their earnings by volunteering. The appropriate rate of compensation has not yet been determined - is not yet clear whether this will be the workers’ normal pay, a flat rate or it will be subject to limitations.

IV) Employer’s perspective

Although very welcomed measures for health and care sector, the EVL can place a great strain on businesses, leaving them with operational difficulties. The employer will not be able to refuse an application for EVL (except in situation of a business with less than 10 employees). Neither it can defer an EVL.

Although the EVL is technically in force and the employers may already receive EVL Notices, the scheme is not yet available for use by employees. These changes must be implemented by passing a statutory instrument which have not yet been published, so they are not yet in force. The employers still have time to ensure contingencies plans are in place. It would be sensible to try and determine if and how many of workers intend to take EVL and, where possible to reach an agreement with the key workers for a shorter period of EVL or to defer the EVL to a more convenient time. 

Under the furlough Guidance, the employees who are furloughed are permitted to take volunteer work. The employers should be mindful of distinguishing between the employee situation of volunteering while on furlough and the situation of an employee applying for Emergency Volunteering Leave. As different rules apply, employers should clarify with employees what type of volunteer work they intend to carry out and legal advice should be sought. 

Disclaimer

The Act provides that these provisions will automatically expire after two years. Therefore, both SSP changes and EVL are temporary. 

Contact us 

If you are a business looking for assistance in implementing this changes or further advice on how to support your staff please contact our team of employment specialists today. 

Call us 0800 8321554

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