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Update 10: coronavirus advice note on new laws impacting holidays, sick pay, home-working and volunteering leave

Gateley Legal

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The impact of Coronavirus has been devastating on some businesses whilst others are working flat out to try and meet increased demands for food and health supplies. Employees across all sectors are affected as some are forced to stay at home, some are self-isolating, and some are working twice their usual hours.

In order to regulate what are extremely difficult working times several new employment regulations related to coronavirus have been rapidly introduced. 

The Working Time (Coronavirus) (Amendment) Regulations 2020

Annual leave can now be carried over to be taken in the next two leave years. 

Previously the Working Time Regulations 1998 had provided that at least 4 weeks of the statutory minimum 5.6 weeks leave had to be taken in the current leave year or it would be lost.

The amending regulations will remove the burden on businesses that would have otherwise had to ensure that workers take at least 4 weeks leave during a time which would not be convenient to either the individual or the employer.

The further 1.6 weeks of annual leave can also be carried over to the following leave year if the employer and employee agree. 

The Statutory Sick Pay (Coronavirus) (Suspension of Waiting Days and General Amendment) Regulations 2020 

These Regulations provide that Statutory Sick Pay is payable from the first day of absence where an employee is absent due to sickness related to Coronavirus. Previously an employee would normally have had to wait three days before being entitled to any payment. This amendment will apply retrospectively for absences related to Coronavirus from 13th March 2020. It appears that absences for reasons other than Coronavirus will still be subject to the usual three-day waiting period.

The Regulations also clarify that a person will be deemed to be incapable of work due to Coronavirus where they have symptoms and are staying home for 7 days and where they live in the same household as someone with symptoms and are staying at home for 14 days. 

Health Protection (Coronavirus, Restrictions) (England) Regulations 2020

In addition to ordering a number of businesses to close these Regulations also provide that people must only travel for the purposes of work where it is not “reasonably possible” to work from the place where they live. This means that it would be illegal for employers to allow employees to attend work where it is possible to work from home.

The restrictions will be reviewed every 21 days, with the first review taking place by 15th April 2020.

The Coronavirus Act 2020

Amongst the many provisions contained in this Act there are details of important new employment rights that will apply to many of those who have responded to the Government’s request for volunteers to help in the fight against Coronavirus. The new rights will apply to those employees who are on ‘emergency volunteering leave’ in health or social care. 

The employee will have to give at least three working days’ notice to their employer of the period that they will be on emergency volunteering leave. This period will be specified in an emergency volunteering certificate which they will have issued to them. It could be for two, three or four weeks.

Whilst volunteers will be able to claim compensation from the Government for some loss of earnings as well as expenses incurred there is no right to paid leave.

Other key points are:

  • The right does not apply where an undertaking has a headcount of less than 10 staff.
  • Employees will be entitled to the benefit of all of the terms and conditions of employment which would have applied if the employee had not been absent, but not pay.
  • Employees will have the right to return from leave to the job in which they were employed before the absence.
  • Pension rights, i.e. if an employment-related benefit scheme does not include an emergency volunteering rule, it is to be treated as including one
  • There is a right for ‘workers’ not to suffer a detriment or dismissal for seeking to take or taking leave or where the employer believed that the worker was likely to take emergency volunteering leave.
  • There is no qualifying service needed for the employee to claim protection.
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