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06 Apr 2020
It introduces a number of emergency measures in response to the 2019 novel coronavirus disease (COVID-19) pandemic, including some employment-related changes. The Act provides for the modification of the statutory sick pay (SSP) regime, so that SSP is payable from the first day of sickness or self-isolation and can be funded by HM Revenue and Customs; and 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. Although the majority of the Act is now in force, the SSP rule changes and the emergency volunteering leave provisions both require secondary legislation, and so will only take effect on a date appointed by the Government.
The SSP provisions are contained in Ss.39–41 of the new Act, which apply to England, Wales and Scotland. (Equivalent provision for Northern Ireland is made in Ss.42-44.) The Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020, which came into force on 13 March 2020, have already amended the SSP rules so that those who self-isolate in accordance with public health guidance on COVID-19 are deemed incapable of work for the purpose of claiming sick pay. However, those Regulations did not affect the rule in S.155(1) of the Social Security Contributions and Benefits Act 1992 (SSCBA) that SSP is not payable for the first three days of incapacity. S.40 of the new Act gives the Government power to make regulations disapplying S.155(1) in relation to an employee whose incapacity for work is related to coronavirus. Furthermore, S.40(4) provides that such regulations may have retrospective effect, taking account of any incapacity for work falling on or after 13 March 2020.
The new Act also provides for coronavirus-related SSP, which is paid by the employer, to be funded by the state. S.39 inserts new S.159B into the SSCBA to give HMRC the power to fund employers’ payment of SSP in respect of coronavirus-related incapacity. HMRC can now make 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. These regulations, like the SSP entitlement regulations under S.40, may be retrospective to 13 March 2020. No draft regulations have yet been published and so the detail of the scheme has not been confirmed. However, on 17 March 2020, the Chancellor of the Exchequer 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.
Emergency volunteering leave is provided for by Ss.8 and 9 and Schedule 7 to the new Act. 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 400,000 individuals have already signed up to the volunteering scheme in the first 24 hours. Under Schedule 7, 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 will then be able to take the leave provided for by the new Act 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’. Initially, there will be one 16-week volunteering period beginning on the day that S.8 and Schedule 7 come into force but subsequent volunteering periods can be set by the Secretary of State.
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, para 5 of Schedule 7 provides that 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 para 6 provides that 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. Furthermore, S.9 of the Act requires the Secretary of State to establish arrangements for paying compensation to volunteers in respect of 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. As for protecting workers who exercise the right to leave, Part 3 of Schedule 7 inserts Ss.47H and 104H into the Employment Rights Act 1996 to provide that 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 Act contains a ‘sunset clause’ in S.89, which provides that the temporary provisions of the Act will automatically expire after two years. Both the SSP rule changes and the right to emergency volunteering leave are temporary. 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 – S.89(2). Under S.90, a Minister of the Crown or a minister of one of the devolved administrations may make regulations providing that the temporary provisions are to expire on an earlier or later date, although in the latter case may only extend the expiry date by no more than six months. Furthermore, S.98 provides for regular parliamentary review, by which, every six months, the House of Commons must vote on a motion asking whether the temporary provisions of the Act should continue to have effect. If the House votes that the temporary provisions should expire, a Minister of the Crown must exercise the power under S.90 so that the temporary provisions expire within 21 days of the vote on the motion.
Do you feel like you and your business are left with more questions than answers following the introduction of furloughing? Our Head of Employment, Daniel Wilde, has recently digested the government advice through a simple question and answer piece. To view this article please click here
Unlike under normal circumstances SSP for Covid19 will be payable from day one: SSP will be payable from the first day of absence for someone who is self-isolating due to Covid-19.
Normally SSP is payable by the employer but in relation to Covid 19, 14 days’ SSP is reclaimable from the government so employers should be able to reclaim the cost of 14 days’ SSP from the Government per eligible employee who is either ill or been told to self-isolate because of coronavirus. NHS 111 isolation note: those who have coronavirus or are advised to self-isolate are now able to obtain an “isolation note” by visiting NHS 111 online and completing an online form, rather than visiting a doctor. This replaces the usual need to provide a “fit note” after seven days of sickness absence.
Employees will only be eligible for SSP for an absence due to Covid-19 if they are isolating in accordance with Public Health England, Public Health Wales or NHS Scotland guidance. Current guidance states that if you or a member of your household are displaying symptoms e.g. continuous cough as defined or a fever, you should self-isolate.
Employees who are self-isolating as they are vulnerable individuals will not be entitled to SSP if they are, or a member of their household is, asymptomatic.
An individual employee must themselves be unwell and unable to work in order to qualify for SSP or be isolating in accordance with government guidance in order to claim SSP. We set out more detail on this above.
At this stage, this would not include “extremely vulnerable persons” who have been advised by the government to “shield” for 12 weeks unless they are showing symptoms or are living with someone who is showing symptoms. Such individuals do not qualify for SSP, but can be furloughed if there is no work/ insufficient work that the employee can undertake at home.
For non Covid-19 illnesses, normal SSP rules apply. The rationale for these changes being the need to dissuade employees from attending work and increasing infection rates.