It introduces a wide variety of emergency powers given to the Government to deal with all sorts of aspects relating to this crisis. In the context of employment law and practice, however, it deals with the following:
- Earlier SSP regulations which became law a few weeks ago changed the SSP rules so that those who self-isolate because they are following public health guidance on COVID-19 are deemed incapable of work for the purpose of claiming sick pay. Those regulations however did not change the rule that SSP is not payable for the first three days of incapacity.
Now, this new Act gives the Government power to make fresh regulations disapplying that rule in relation to an employee whose incapacity for work is related to coronavirus. In addition, the Act confirms that these fresh regulations may have retrospective effect, taking account of any incapacity for work falling on or after 13 March 2020.
Therefore, although these details are not yet law, the Government now has power to issue new, fresh regulations (which are much easier and quicker to put in place than an Act of Parliament). As these principles have been widely reported and refereed to by ministers, we can expect these fresh regulations to come in very soon.
- The new Act also provides for coronavirus related SSP paid by the employer to be funded by the state. The Act gives HMRC the power to fund, to an extent, certain businesses’ payments of SSP in respect of coronavirus-related incapacity.
HMRC can now make fresh regulations setting out the extent and manner of such funding, including making provision for funding in advance or by way of reducing employers' other liabilities, and which may be retrospective to 13 March 2020.
No fresh regulations have yet been published and so the detail of the scheme has not been confirmed. However, the Government previously announced that the funding would be available to employers with fewer than 250 employees and would be limited to two weeks' SSP per eligible employee. It seems likely, therefore that, as with the other fresh regulations mentioned above, we can expect these particular regulations to come in at any moment.
Emergency volunteering leave
Emergency volunteering leave is introduced in this new Act, though as at the time of writing it is not yet in force. This will permit workers to leave their main job and volunteer temporarily in the NHS or social care sector.
An 'appropriate authority', such as a local authority, an NHS Commissioning Board or the Secretary of State for Health and Social Care, can certify an individual to act as an emergency volunteer in health or social care.
That person is then permitted to take volunteering leave, provided they give their employer three working days' notice and they are able to produce the above certificate. The period of leave must be either two, three or four weeks long, and must be specified in the certificate. There is nothing in the Act which says that employers are able to refuse leave.
Workers can take one period of leave in each 'volunteering period'. Initially, there will be one 16-week volunteering period beginning on the day that the new law comes into force, but subsequent volunteering periods can be set by the Government.
The right to take emergency volunteering leave does not include a right to payment and so there is no obligation on the employer to pay wages during a period of leave. However, an employee on emergency volunteering leave will be entitled to the benefit of all of the terms and conditions of employment (except remuneration) that would have applied if the employee had not been absent.
However, the Government will be required to establish arrangements for paying compensation to volunteers for loss of earnings and travel and subsistence expenses. It is not currently clear whether this scheme will replace all lost earnings, will be subject to a cap or will consist of a flat rate.
If workers exercise the right to leave, the Act protects them by saying that:
(1) it will be unlawful to subject a worker to a detriment for having taken (or wanted to take) such leave; and
(2) it will be automatically unfair to dismiss an employee for the same reason. That means they do not need the usual two years’ service to bring a claim.
Furthermore, the employee will be entitled to return from leave to the job in which they were employed before the absence on no less favourable terms and conditions.
As with the new rules regarding SSP mentioned above, some more regulations will be needed to be issued by the Government before the above will become effective, but bearing in mind that some 400,000 people have already volunteered their services, we can presumably expect these particular laws to come into force quickly to encourage those who have volunteered to do so.
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