The Coronavirus Act 2020 creates a new, temporary, statutory right for eligible workers to take Emergency Volunteering Leave ("EVL") to assist the health and social care system in response to the COVID-19 outbreak. It was recently reported that over 750,000 people in England have volunteered to assist the NHS in a number of ways such as delivering food and medicine, driving patients to appointments and phoning the isolated. Locally, the Department for Communities is working with charities such as Volunteer Now and others to ensure that there is a co-ordinated response to the need for community support for those most vulnerable and isolated within our communities. There has been much fanfare over the introduction of the Job Retention Scheme but less coverage of EVL. This article will explain how the EVL scheme works.
How the EVL scheme will work
EVL is a new right to take unpaid leave in two, three or four week blocks once during any designated 16-week 'emergency period' to become an emergency volunteer for an appropriate authority. In Northern Ireland this would be the Department of Health, the Regional Health and Social Care Board or a Health and Social Care Trust. The ability to take this leave will be triggered by the Government commencing a 16-week emergency period. This has not yet taken place but is expected to happen in the near future. There are provisions for there to be more than one emergency period and therefore there could be multiple blocks on EVL taken.
To become an emergency volunteer, the worker must receive an EVL certificate from the appropriate authority. Once the worker has this the employer must be provided with at least 3 working days' notice prior to the first day of leave. There is no mechanism for employers to delay requests from eligible workers. The ability to take EVL will end at the end of the COVID-19 outbreak.
Whilst volunteering, workers will be entitled to the benefit of and be bound by their obligations under all of their terms and conditions of employment, except in relation to remuneration. At the end of EVL the workers have the right to return on the same terms. There are also provisions in respect of pensions designed to effectively treat the worker as though they were still working.
There is no qualifying period of service for workers to be eligible. However, there are certain employers which are exempt. The most notable exemption is for businesses with 10 or fewer members of staff. The legislation provides for the potential of claims from employees that have been dismissed or otherwise suffered a detriment due to their status as an emergency volunteer, their intention to be an emergency volunteer, or the fact that their employer believed they would be an emergency volunteer. This is a "day one right" and a dismissal of an employee on this basis would be automatically unfair regardless of how long they have been employed.
There is provision in the legislation for emergency volunteers to be compensated through a Government compensation scheme for loss of earnings, and for travelling and subsistence. Arguably this means that the individuals are not really volunteers at all in the normal sense of the word. It is notable that under the Job Retention Scheme, many workers will already be having 80% of their wage essentially paid by the Government due to their employers placing them on furlough. The Job Retention Scheme specifically states that furloughed workers can volunteer so it appears that the EVL scheme is designed to complement the Job Retention Scheme.
The new legislative provisions, together with the Job Retention Scheme, provide a framework which is designed to promote and encourage able workers to give their time to assist the health and social care system at a time when it needs it most. It attempts to do this by dealing with the two main barriers that would exist to stop volunteers coming forward: risk to employment and loss of income.
There are many ways in which individuals can volunteer already outside of the scheme. However, while individuals who are already furloughed may find it easier to access volunteering opportunities; the EVL scheme may provide opportunities for workers that have not (or cannot) be furloughed to serve the greater good.
While many employers might actively encourage their workers to avail of the EVL scheme, others may be in for a shock when they find out that a key member of staff will be leaving to volunteer with only 3 days' notice. Employers should tread carefully to avoid any claims from emergency volunteers, particularly if it is consulting on redundancies. There may also be some complicated issues that would arise if the worker becomes ill while on EVL or otherwise stops it part way through. However, it is worth nothing that, like the Job Retention Scheme, this is an exceptional measure in unprecedented times.
This article has been produced for general information purposes and further advice should be sought from a professional advisor. Please contact our Employment team at Cleaver Fulton Rankin for further advice or information.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.