Emergency volunteering leave
What are ‘emergency volunteers’?
‘Emergency volunteers’ are individuals who have signed up to support the NHS in it’s response to the COVID-19 outbreak, as permitted by the rules announced by the Government on 23rd March 2020.
Individuals can sign up for one or more of the following volunteering roles in health or social care:
- Community response volunteer: involves collecting shopping, medication or other essential supplies for someone who is self-isolating, and delivering these supplies to their home.
- Patient transport volunteer: supports the NHS by providing transport to patients who are medically fit for discharge, and ensuring that they are settled safely back in to their home.
- NHS transport volunteer: involves transporting equipment, supplies and/or medication between NHS services and sites, it may also involve assisting pharmacies with medication delivery.
- Check-in and chat volunteer: provides short-term telephone support to individuals who are at risk of loneliness as a consequence of self-isolation.
Can an employee sign up to be an emergency volunteer?
Any individual who is 18 or over, and is fit and well with no symptoms can apply to be an emergency volunteer in health or social care. Those in higher-risk groups (including those over 70, those who are pregnant or with underlying medical conditions) can still sign up, but will be able to offer support by telephone only. There are no restrictions against people who are currently employed from signing up.
An appropriate authority will review applications and decide whether to approve the applicant as an emergency volunteer, based on the suitability of their skills and their experience. If approved, a certificate will be issued certifying that the individual is approved to, and will be commencing, an emergency volunteer role for the specified time (“emergency volunteering certificate”).
Emergency volunteer leave
Do we have to give an employee time off if they sign up to be an emergency volunteer?
Employees are entitled to emergency volunteer leave on the condition that they provide their employer with at least three days notice of the following:
- written notification of their intention to be absent from work;
- the period of time for which they will be absent; and
- a copy of their emergency volunteering certificate.
The time specified for emergency volunteer leave can be for either two, three or four consecutive weeks and it must begin and end within 16 weeks of the 25th March 2020. Individuals can only take one block of volunteer leave in any 16 week period.
There are some limited exceptions to the entitlement for emergency volunteering leave. There are set out in paragraph 3 of Schedule 7 of the Coronavirus Act 2020 Act, and include employers with less than 10 employees, civil servants, people working in the legislature and police officers.
Pay & benefits
Do we have to pay employees on emergency volunteering leave?
Employees are not entitled to pay from their employer as remuneration during emergency volunteering leave (Part 2, s5(2)). The basic premise to support this is that it is a volunteering role.
The employee may be able to claim from the government, payments by way of compensation for loss of earnings in respect of acting as an emergency volunteer.
Do we have to provide employees with other benefits during emergency volunteering leave e.g. annual leave, pensions, bonuses etc?
Yes, most likely.
Schedule 7 of the Act states that “an employee who takes emergency volunteering leave is, during any period of leave, entitled to the benefit of all of the terms and conditions of employment which would have applied if the employee had not been absent”. (Part 2, s5(2)(b))
This mean that employees should continue to retain all benefits, including pension entitlements, whilst on emergency volunteering leave. This means that employees should still accrue annual leave, maternity leave, retain their company car etc.
The position regarding bonuses is less clear. As noted above, the Act states that employees on volunteering leave are not entitled to remuneration. However it also states that “only sums payable by way of wages or salary are to be treated as remuneration”. This suggests employees are still entitled to any bonus payment in respect of the volunteer leave period.
Are we entitled to any compensation in respect of employees who are on emergency volunteering leave?
No, it appears not.
There is nothing in the legislation which suggests that employers are entitled to be compensated by the government in respect of an employee who has gone off on emergency volunteer leave. This is in contrast with the position for military reservists, whereby compensation is available. Perhaps this is due to the fact that reservists can be mobilised for potentially much longer periods of time, whilst emergency volunteers will not be absent for any more than 4 weeks at a time.
Protection from detriment & dismissal
What obligations do we have in respect of employees who have gone off on emergency volunteer leave and are due to return?
It is important that any employee who returns to work after a period of emergency volunteering leave is able to return into to the job in which they were employed before the absence.
Upon return, the terms and conditions applicable to the employee should be no less favourable than those which would have applied if the employee had not been absent. Thus, employers should ensure that the employee holds the same seniority, pension and similar rights that they had before the absence.
Are we able to dismiss an employee who is going on, or is on, emergency volunteering leave?
No, we would certainly advise against this due to the harsh penalties which can be imposed on employers for doing so.
The 2020 Act inserts the following new provisions into the Employment Rights Act 1996:
- s104H – it is unlawful for an employer to subject an employee to detriment based on the fact that the employee takes, or proposes to take, or where the employer believes that the employee proposes to take, emergency volunteering leave;
- s7BC - the dismissal of an employee is unlawful where it is based on the above grounds;
- s108(3) - the qualifying period of employment will not apply in the case of dismissal based on the above grounds; and
- s124(1A) - the limit on compensation will not apply in the case of dismissal based on the above grounds.
Essentially, this means that if an employer dismisses an employee based on emergency volunteering leave, then (i) this is automatically unfair, (ii) the employee doesn’t need 2 years service to claim unfair dismissal and (iii) the compensation which an employee may be awarded is uncapped.
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