Coronavirus Act 2020 and amendments to the Employment Rights Act 1996

The Coronavirus Act 2020 has created a new statutory right for employees to take an unpaid leave of absence to volunteer in either health or social care during the COVID-19 Pandemic.  The length of a volunteering assignment can either be two, three or four weeks, and will occur (at least initially) within 16 weeks of 25^th March 2020 (i.e. when the Act received Royal Assent).

Schedule 7 of the 2020 Act sets out the procedure for an employee notifying their employer that they are volunteering.  They are required to tell their employer in writing of their intention to volunteer, and present a copy of an emergency volunteering certificate (Schedule 7, Part 1, Para 1(2)).

The certificate will be issued by an ‘Appropriate Authority’, found at paragraph 4 of Schedule 7.  Note that the appropriate authorities are different between England and Wales.

Some employees are not able to take unpaid absence in order to volunteer.  These include Crown Employees, the Police, or an employee of a company with under 10 employees (Schedule 7, Part 1, Para 3).

An employee who volunteers has the right to return to their employment at the end of the volunteering period.  This must be on conditions “no less favourable than those which would have applied if the employee had not been absent” (Schedule 7, Part 1, Para 6).  This will also be the case even if the employee would have been furloughed during that period.

Finally, Schedule 7 amends the Employment Rights Act 1996 and inserts two new sections, protecting the employee from suffering a detriment or being dismissed for taking emergency volunteering leave.  These are the new sections 47H and 104H:

47H Emergency volunteering leave

(1)A worker has the right not to be subjected to a detriment by any act, or any deliberate failure to act, by their employer on the grounds that—

(a)the worker took, sought to take, or made use of the benefits of, emergency volunteering leave under Schedule 7 to the Coronavirus Act 2020, or

(b)the employer believed that the worker was likely to take emergency volunteering leave under that Schedule.

(2)A worker makes use of the benefits of emergency volunteering leave if, during a period of emergency volunteering leave, the worker benefits from any provision of Part 2 of Schedule 7 to the Coronavirus Act 2020.

(3)Subsection (1) does not apply where the worker is an employee and the detriment in question amounts to dismissal within the meaning of Part 10.”

104H Emergency volunteering leave

(1)An employee who is dismissed is to be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that—

(a)the employee took, sought to take, or made use of the benefits of, emergency volunteering leave under Schedule 7 to the Coronavirus Act 2020, or

(b)the employer believed that the employee was likely to take emergency volunteering leave under that Schedule.

(2)An employee makes use of the benefits of emergency volunteering leave if, during a period of emergency volunteering leave, the worker benefits from any provision of Part 2 of Schedule 7 to the Coronavirus Act 2020.

Section 104H is an automatically unfair reason for dismissal which does not require qualifying service.  The compensatory award is not limited by the statutory cap.  Sections 108(3) and 124(1A) ERA 1996 have been amended

Section 105 (automatically unfair reasons for selection for redundancy) is amended with section 105(7BC). This includes section 104H as one of the prohibited reasons for selection.  Again, this could potentially come into play if an employee was made redundant whilst volunteering, when other colleagues were furloughed.

Time limits for both section 47H and 104H claims are the same as for other claims concerning detriments and unfair dismissal, i.e. 3 months from the detriment/effective date of termination.

James is Head of our Employment Team.  If you would like to instruct him, please contact his clerks on 0117 921 1966 or employment@qsc.law