Recent changes to employment law due to Coronavirus
The Coronavirus Act 2020 was passed on 25 March 2020. It introduces a number of emergency measures in response to the COVID-19 pandemic, including some employment-related changes which all employers need to be aware of.
Changes to SSP
The Act provides for the modification of statutory sick pay (SSP), so that SSP is payable from the first day of sickness or self-isolation and the first two weeks of absence will be funded by HMRC.
The funding will be available to employers with fewer than 250 employees and is limited to two weeks’ SSP per eligible employee.
The Government has announced the Coronavirus Job Retention Scheme which will allow employers to access support to continue to pay 80% of employees’ wages rather than make redundancies. Furlough is a new term and existing contracts of employment do not refer to it. Employers will need to agree with affected employees that they are “furloughed”. If more than 20 employees are to be furloughed at one time and the employer is unable to reach agreement to furlough, S188 Trade Union and Labour Relations (Consolidation) Act 1992 is likely to be triggered requiring employers to inform and consult with either recognised trade unions or elected representatives in relation to the proposed change. The alternatives will either be lay-off (if their employment contract permits this) or redundancy.
The Government confirmed that the scheme would be open in respect of employees furloughed from 1 March 2020.
Employers can claim grants of up to 80% of an employee’s wage for all employment costs, up to a cap of £2,500 per month. To qualify for this scheme, employees should not undertake any work while they are furloughed. Employees will remain employed while furloughed. You can choose to fund the 20% difference of the employee’s salary, but this is not mandatory.
Current government guidance for employers is here https://www.gov.uk/guidance/claim-for-wage-costs-through-the-coronavirus-job-retention-scheme]
Guidance for employees is here
The Working Time (Coronavirus) (Amendment) Regulations 2020 came into force from 26 March 2020.
The new Regulations relax the restrictions on carrying over untaken annual leave that has been affected by Coronavirus. Any untaken leave can now be carried over into the next two years. This only applies to the four weeks of annual leave provided for under European law and not the additional 1.6 weeks of annual leave provided for by the Working Time Regulations, which is already subject to different rules on carry-over.
This should reassure employers who are worried about all workers taking their holiday at the end of the current leave year. Additionally, there has been an amendment so that workers can receive a payment in lieu of their holidays if their employment is terminated before they have taken the carried-over leave.
The Regulations also introduce a restriction on an employer’s right to refuse leave on particular days. Under current regulations, an employer may require a worker not to take leave on particular days. The amendment provides that the employer will only be able to require a worker not to take carried-over leave on particular days where the employer has ‘good reason’ to do so, although a definition of ‘good reason’ is not provided.
Emergency Volunteering Leave
The Act also creates ’emergency volunteering leave’, which will enable emergency volunteers in health or social care to take unpaid time off work and receive compensation for loss of earnings.
This is aimed at allowing workers to leave their main job and volunteer temporarily in the NHS or social care sector. It has been reported that over 500,000 individuals have already signed up to the volunteering scheme. Under the Act, an appropriate authority can certify an individual to act as an emergency volunteer in health or social care. That person will then be able to take the leave if he or she gives his or her employer three working days’ notice and produces the certificate. The period of leave must be either two, three or four weeks long, and must be specified in the certificate. There is no provision for employers to refuse leave. Workers can take one period of leave in each volunteering period (16 weeks).
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; and the employee will be entitled to return from leave to the job in which he or she was employed before the absence on no less favourable terms and conditions.
Arrangements will be put in place by the Government to allow for paying compensation to volunteers in respect of loss of earnings and travel and subsistence expenses. As for protecting workers who exercise the right to leave, it will be unlawful to subject a worker to a detriment for having taken (or sought to take) emergency volunteering leave, and that it will be automatically unfair to dismiss an employee for the same reason.
The Coronavirus Act 2020 provides that the temporary provisions under it will automatically expire after two years. However, the protection from detriment and dismissal for having taken emergency volunteering leave, and the protection of employees’ terms and conditions of employment during such leave, are not temporary and so will not automatically expire.
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