COVID-19: details on the right to Emergency Volunteering Leave (EVL)
Please Note: All information correct at time of writing on 2 April 2020. We do our very best to make sure our information is as up to date as possible, but we’d encourage you to check out our latest articles and to check the government website for updates as they happen.
Schedule 7 of the Coronavirus Act, which came into force last Thursday (26 March), created a new right to Emergency Volunteering Leave (EVL). Although the government still needs to produce implementing regulations to bring this new right into force, these are expected imminently.
We’ve created a summary of what we know so far about EVL and what it means for employers during the COVID-19 crisis.
- What is the right?
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A worker is entitled to be absent from work for the period specified in an emergency volunteering certificate. This is provided that the worker - no later than 3 working days before the first day of the period specified in the emergency volunteering certificate:
- Informs their employer in writing of their intention to be absent from work on leave for the period set out in the emergency volunteering certificate, and
- Provides their employer with a copy of the certificate
- What is an emergency volunteering certificate?
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This is a document issued by an appropriate authority (such as a local authority or NHS Commissioning Board) which certifies that the worker:
- has been approved by the authority as an emergency volunteer in health or social care and
- will be acting as an emergency volunteer in health or social care from the date, and for the period, specified in the certificate
- How long can the leave last?
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The period set out in the certificate must be a period of:
- two consecutive weeks
- three consecutive weeks, or
- four consecutive weeks
- What is the volunteering period?
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The volunteering period is a period of 16 weeks starting on a date to be specified (the government can designate further periods if appropriate).
- Can EVL be taken back to back in different volunteering periods?
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Yes. Although you can’t take two periods of EVL in a 16-week period, you could take one at the end of one volunteering period and another at the start of the next period, making potentially 8 consecutive weeks of leave.
- Are there any exceptions to the entitlement?
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The main exception is that the right will not apply where the worker is employed by a business which employs less than 10 people.
Effect of taking EVL
During the period of leave, the employee continues to be entitled to the benefit of all of the terms and conditions of employment (except wages or salary) which would have applied if the employee had not been absent, and they continue to be bound by any obligations arising under those terms and conditions.
When the employee returns to work, they are entitled to return to the same job. The Act specifically provides that:
(a) the employee’s seniority, pension and similar rights should be as they would have been if the employee had not been absent, and
(b) the terms and conditions should be no less favourable than those which would have applied if the employee had not been absent.
- What protection is given to emergency volunteers?
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The Act gives protection against the employee suffering a detriment because they have taken EVL or because the employer believes they are likely to take it. If the employee is dismissed and the principle reason for dismissal is the employee took or the employer believed they were likely to take, EVL, the dismissal will be automatically unfair. This also includes where the employee is selected for redundancy for either of these reasons. There is no qualifying service needed to bring a claim and there is no cap on damages.
- Volunteer pay
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Although EVL is unpaid by the employer, the employee can submit a claim to the government for:
- loss of earnings; and
- travelling and subsistence
No doubt further details of how EVL will work in practice will be clarified by the implementing regulations. At the moment we don’t know whether an employer will have any right to defer the leave, but it’s likely that this might not be possible given the urgent need for volunteers to support the NHS and social care.
Hopefully, the regulations and any accompanying guidance will give us some answers to these questions.
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Keep an eye on our latest articles, free resources and social media for updates as they happen. And if you’re a Citation client, you can call our 24/7 advice line on 0345 844 4848.
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