The Coronavirus Act 2020 (Schedule 7), contains the introduction of a new statutory form of leave. Note that it is temporary in nature, all designed to incentivise employees ‘in the event of a severe outbreak of coronavirus in the UK’.
However, devolution devotees need to be aware that statutory leave entitlements are a devolved issue. So this introduction is extraordinary in that a single piece of legislation introduces leave that will temporarily meaning that two pieces of legislation have to be read as if they had been amended permanently:
- The Employment Rights Act 1996 in Great Britain and
- The Employment Rights (Northern Ireland) Order 1996 in Northern Ireland
However, there are powers within the Bill to allow for further regulations. In this case, it will be for Great Britain to make their own and the Department for the Economy to do the same in Northern Ireland.
Having received Royal Assent on 25 March 2020, Schedule 7 has come into effect. Now is when there will be the introduction of the temporary ‘volunteering periods’ which are, essentially, periods of 16 weeks.
Emergency Volunteer Leave (ELV) does not apply to employees of employers with a headcount of less than 10. Certain other employers do not have to offer this either, for example, where the employee is employed by the Crown, the House of Lords, police service etc. See Regulation 3 ‘Exceptions to entitlement to emergency volunteering leave’.
How much leave?
An employee electing to exercise their statutory right to take ELV for 4 weeks in any 16-week volunteering period. During this time, the employee can take up to 4 weeks of EVL but they must be continuous blocks of either 2, 3 or 4 weeks.
The EVL can only be taken if the individual has been issued with an ‘emergency volunteering certificate’ by an ‘appropriate authority’. The definition of an appropriate authority differs depending on whether the employee is volunteering in England, Wales, Scotland or Northern Ireland. See Regulation 4 ‘Meaning of “appropriate authority”’.
There are no minimum employee service or earnings criterion, only criteria about the type of employer, as mentioned above and in Regulation 3 ‘Exceptions to entitlement to emergency volunteering leave’.
There is no statutory entitlement to ‘remuneration’ (See ‘Application of terms and conditions of employment’ in Regulation 5). However, the terms and conditions of employment remain unaffected, as do things like continuity of service, accrual of holiday pay etc.
Of course, this opens up the debate as to what is defined as remuneration. For example, a company car is part of the terms and conditions and would have to continue to be provided. However, if the employer chooses to pay or the employee elects to receive a car allowance instead, this is remuneration and does not have to be provided (unless the employer wants to).
Notification to the employer
This is covered in Regulation 1 ‘Entitlement to emergency volunteering leave’. Essentially, no later than 3 working days before the first day of the period specified in the emergency volunteering certificate, the employer needs to be advised. If that condition is fulfilled, they are entitled to the leave.
Continuing employment rights and protection
All employment rights are protected as if they were at work rather than volunteering (Regulation 5). Regulation 6 says that they have the right to return to the same job and Regulation 7 says that pension rights are protected.
If the employee suffers any detriment, they are entitled to go to an Employment Tribunal in Great Britain or and Industrial Tribunal in Northern Ireland.