Question 1. What is statutory emergency volunteering leave (EVL)?
Answer 1. The Coronavirus Act (CA) 2020 was enacted on March 25, 2020, and introduces a new statutory emergency volunteering leave (EVL) to support the National Health Service (NHS) and social care authorities.
The government originally called for 250,000 volunteers to help to support the NHS and social care. After just one week, the total was nearly 750,000 volunteers.
Q2. Who can volunteer?
A2. Anyone can put him- or herself forward as a volunteer. However, employed individuals must seek their employers’ permission first. Workers (including agency workers) are eligible for EVL. Volunteers will be required to:
- deliver medicines from pharmacies;
- drive patients to appointments;
- bring patients home from hospital; and
- make regular phone calls to check on people isolating at home.
Q3. Is there a time limit for EVL?
A3. Workers will be able to take EVL in blocks of 2, 3, or 4 weeks every 16 weeks, meaning that the maximum volunteer time is four weeks per 16-week period.
Q4. What are the notice requirements for taking EVL?
A4. Workers are required to give their employers three working days’ notice. A worker must be able to produce a certificate from an appropriate authority, certifying that he or she has been approved for emergency volunteering and will be acting as an emergency volunteer from the date, and for the period, as specified in the certificate. Appropriate authorities include:
- a local authority;
- the NHS Commissioning Board; and
- the Department of Health.
Q5. Are there restrictions on who can take EVL?
A5. Employers with fewer than 10 workers will not be required to grant EVL, and those who work for the Crown (such as the armed forces or police officers) are not eligible to volunteer. The CA 2020 provides a full list of workers who are not eligible to volunteer.
Q6. What are the pay requirements during EVL?
A6. EVL is unpaid leave; however, some employers may be prepared to continue providing wages during this period as a gesture of goodwill. Although the leave is unpaid by an employer, the CA 2020 requires the Secretary of State to make accompanying regulations to compensate workers who choose to take EVL for their loss of earnings and for travel and sustenance. Details are awaited, however it is assumed that this compensation will be payable directly from the government.
Q7. Can a worker on furlough leave apply for EVL?
A7. According to guidance issued related to the Coronavirus Job Retention Scheme, it is possible for furloughed workers to participate in volunteer work provided the work does not generate revenue or provide services to or on behalf of the employing organization.
Q8. What are the terms and conditions of employment during EVL?
A8. EVL volunteers are entitled to the benefit of and to be bound by the existing terms and conditions of their employment (except for remuneration).
Q9. What happens with pension scheme rights during EVL?
A9. Pension schemes will be deemed to include a provision that time spent on EVL is treated for pension purposes in the same way as if workers were working normally. This means that the employer’s pension contributions will need to be based on workers’ normal pay; however, workers’ contributions will be based on the amount of actual pay during EVL.
Q10. What are the terms and conditions for returning to work?
A10. Workers will have the right to return to their jobs on the same terms and conditions of employment that applied before their periods of volunteering leave.
Q11. Does the CA 2020 affect the Employment Rights Act (ERA) 1996?
A11. The ERA has been modified to include protections for workers who choose to take EVL. Under the modified ERA, as outlined in the CA 2020, workers retain the rights to:
- not suffer a detriment for taking EVL or because their employers believe they are likely to do so;
- bring claims for automatic unfair dismissal, where the principal reason for the dismissals is that they took EVL, or their employers believed they were likely to do so; and
- bring claims for automatic unfair dismissal when selected for redundancy due to taking EVL or because their employers believed they would take EVL.
Compensation for breach of the rights described above is uncapped and requires no qualifying length of service.
The NHS has launched a website where volunteers can register.
Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Critical information for employers is also available via the firm’s webinar programs.
Daniella McGuigan is a partner is the London office of Ogletree Deakins.
Carrie-Ann Hopkins is a paralegal in the London office of Ogletree Deakins.
