Coronavirus Bill: emergency volunteering leave and SSP changes

Coronavirus Bill: emergency volunteering leave and SSP changes

Employment analysis: The Coronavirus Bill, currently progressing through Parliament, contains provisions creating a new form of statutory unpaid leave called ‘emergency volunteering leave’ and also empowering provisions to allow for refunds to employers of coronavirus (COVID-19)-related SSP payments and disapplication of the three day waiting period (in coronavirus (COVID-19)-related cases) that normally applies before SSP is payable.

Coronavirus Bill (HC Bill 122), as introduced on 19 March 2020

Employment-related clauses in the Coronavirus Bill

An emergency Bill to deal with various aspects of the coronavirus (COVID-19) pandemic was introduced to the House of Commons and given its First Reading on Thursday 19 March 2020, entitled the Coronavirus Bill.

This First Reading stage is formal and took place (as is usual) without any debate. During Monday 23 March 2020:

• MPs in the House of Commons will consider the Coronavirus Bill at Second Reading, and

• if the Business of the House Motion is approved, Committee of the Whole House stage and Third Reading will also be taken

It is expected that this will occur, meaning all Commons stages will pass during 23 March 2020.

The Coronavirus Bill contains two sets of provisions of particular relevance in the employment law field:

• the ‘Emergency volunteers’ clauses at clauses 7 and 8, relating to the creation of ‘emergency volunteering leave’,  and

 • the changes to the Statutory Sick Pay (SSP) framework at clauses 37 to 42

Emergency volunteers

The Coronavirus Bill sets out provisions for ‘emergency volunteering leave’ (EVL), a temporary new form of statutory unpaid leave for employees and workers who wish to volunteer in the health and social care sectors during the outbreak of coronavirus (COVID-19). The relevant provisions under the Bill are:

• clause 7 taken in combination with schedule 6, which set out how such leave will work, and

 • clause 8, which relates to arrangements for making Government payments to emergency volunteers by way of compensation for loss of earnings and for travelling and subsistence incurred when engaging in EVL

Overview of EVL

The provisions regarding EVL are set out in schedule 6 to the Bill:

• to qualify for EVL, a worker must be issued with an ‘emergency volunteering certificate’ (EVL Certificate) by an appropriate authority, confirming that they have been approved as an emergency volunteer, and that they will volunteer for a specified period

• a worker must then provide written notice, including the EVL Certificate, to their employer at least three working days before the first day of the period specified in the EVL Certificate

• a worker is entitled to take a set block of two, three or four consecutive weeks of EVL during a period of 16 weeks (a ‘volunteering period’)

• there is no requirement for a worker to have any qualifying period of service with their employer to take EVL

• subsequent volunteering periods can be specified by relevant national authorities in regulations

• a number of categories of worker are exempted from the entitlement to take EVL (these cover those who work in other critical roles)

• terms and conditions of employment (except those relating to remuneration) continue to apply during EVL and protections apply to an individual’s pension rights

• workers who take, or seek to take, EVL are protected from detriment and employees receive additional unfair dismissal protections

Compensation for emergency volunteers

EVL is unpaid. Clause 8 of the Bill provides that the Secretary of State must make arrangements for making payments to emergency volunteers by way of compensation for loss of earnings and for travelling and subsistence. We do not yet know any more regarding what these arrangements might be.

Full information on emergency volunteering leave (EVL)

For full coverage on how schedule 6 of the Bill sets out the detailed operational framework of emergency volunteering leave (EVL), see the new Practice Note: Emergency volunteering leave. As the Bill is currently progressing through Parliament, its provision could be amended. Insofar as such amendments (if any) affect the workings of EVL, that Practice Note will be updated accordingly.

Changes to Statutory Sick Pay (SSP)

Clauses 37 to 42 in the Bill, which relate to changes to the SSP regime, are all empowering provisions, ie they create powers to create delegated legislation (statutory instruments (SIs)) which will contain the detail of the actual changes being made. At the time of writing, no such SIs have yet appeared in draft, so the information is confined to what is contained in those empowering provisions. That said, the empowering provisions do describe the broad nature of the areas with which such SIs made under them may deal, so they are a good guide to what to expect. What is lacking at this stage is the precise implementation mechanisms, which will appear in those SIs once they are published. We will publish further information when we have it.

The changes being implemented with regard to SSP in the Coronavirus Bill are broadly speaking those that were announced in the Spring Budget, as we reported on 11 March 2020: Special temporary measures for Statutory Sick Pay (SSP) refunds announced in Budget.

The relevant part of the budget report is on pages 39-40, at paragraph 1.99. It reads as follows:

“1.99 Statutory Sick Pay – The government will support small and medium-sized businesses and employers to cope with the extra costs of paying COVID-19 related SSP by refunding eligible SSP costs. The eligibility criteria for the scheme are as follows:

• this refund will be limited to two weeks per employee

• employers with fewer than 250 employees will be eligible. The size of an employer will be determined by the number of people they employed as of 28 February 2020

• employers will be able to reclaim expenditure for any employee who has claimed SSP (according to the new eligibility criteria) as a result of COVID-19

• employers should maintain records of staff absences, but should not require employees to provide a GP fit note

• the eligible period for the scheme will commence from the day on which the regulations extending SSP to self-isolators come into force [NB the regulations mentioned here are the Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020, SI 2020/287, which came into force on 13 March 2020]

• while existing systems are not designed to facilitate such employer refunds for SSP, the government will work with employers over the coming months to set up a repayment mechanism for employers as soon as possible”

The only relevant SI currently in force (since 13 March 2020) is the Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020, SI 2020/287, the effect of which is to amend the Statutory Sick Pay (General) Regulations 1982, by adding wording to regulation 2 to include new sub-regulation 2(1)(c), which defines a further category of persons who, for the purposes of entitlement to claim SSP, is ‘deemed incapable of work’, namely persons who:

• are isolating themselves from other people in such a manner as to prevent infection or contamination with coronavirus disease, in accordance with guidance published by Public Health England, NHS National Services Scotland or Public Health Wales and effective on 12 March 2020, and

• by reason of that isolation are unable to work

It follows that employees who are self-isolating and unable to work as a result are already entitled to claim SSP under the ‘normal rules’ (see Practice Note: Sick pay).

Note that those regulations have a sunset clause, causing their effect to expire eight months after 13 March 2020 (when they came into force), ie on 13 November 2020. Obviously the period of their validity may be reviewed to a different date in due course if thought appropriate.

The above Budget summary continues to provide a reasonable guide as to what to expect next when the relevant SIs are made. Broadly speaking, the changes can be subdivided under the following heads:

• refunds of SSP to employers paying out for coronavirus (COVID-19) reasons

• disapplying the waiting period before SSP may be claimed, where the claim is coronavirus (COVID-19)-related

Refunds of coronavirus (COVID-19)-related SSP

The above Budget extract states that refunds are to be limited as follows:

• two weeks per employee

• only available to employers with fewer than 250 employees

The empowering provisions under the Coronavirus Bill contain no such restrictions. It is not known whether:

• that is because the government no longer wishes to include such limitations, or

• it is simply because those limitations will be included in the SIs yet to be created that implement the substantive changes, as opposed to in the empowering provisions

Clause 37 of the Bill deals with aspects related to refunds.

As indicated above, it contains empowering provisions to allow for the making of SIs which we have not yet seen. Those powers will:

• allow the creation of regulations which ‘make provision for the payment by employers of statutory sick pay in respect of incapacity for work related to coronavirus to be funded by Her Majesty’s Revenue and Customs (HMRC) to such extent and in such manner as may be prescribed’. This is clearly very broadly worded and allows for maximum flexibility as regards what the regulations may contain regarding HMRC funding SSP payments

• as regards recovery of sums of SSP:

◦ the payment being recovered will have to be in respect of an employee whose incapacity for work is related to coronavirus

◦ the powers allow regulations that allow recovery of some or all of that payment

◦ the powers also allow regulations that allow recovery of ‘an additional amount, determined in such manner as may be prescribed’. It is not known exactly what this power is intended to cover, but it is broadly drawn and could allow payment of sums over and above the SSP paid out by the employer, eg payment at a higher rate than conventional SSP rates allow

◦ there is also a power to allow for the creation in the regulations of exceptions to the normal recovery entitlements (ie exceptions where no or lesser recovery would be allowed) in ‘prescribed circumstances’; again it is not known what may be included in such exceptions

• note that the regulations made will be allowed to have retrospective effect in relation to a day of incapacity for work that falls on or after 13 March 2020, ie all relevant SSP payments relating to periods between 13 March 2020 and the date the new regulations made take effect will be covered by the regulations too

• the recovery framework only applies when the SSP paid out is ‘in respect of an employee whose incapacity for work is related to coronavirus’; the regulations will provide a precise definition of when this is the case

• there is a power to allow the regulations to provide for:

◦ funding by HMRC of SSP payments in advance as well as in arrears

◦ funding, or the recovery of amounts due, under the power described above to provide ‘an additional amount, determined in such manner as may be prescribed’, by making deductions from such amounts for which the relevant employer is accountable to HMRC in tax (ie by reducing the employer’s tax bill by the relevant amount)

◦ recovery by HMRC of any sums overpaid to employers under the refund scheme

• where, under the regulations made, an amount is deducted from what would normally have been the employer’s primary or secondary Class 1 NICs, those employer’s NICs will be treated as:

◦ having been paid on a date determined by the wording of the regulations, and

◦ as having been received by HMRC

• the powers unsurprisingly allow the regulations made to:

◦ set out the procedure for an employer to make claims

◦ set out how such claims will be determined by HMRC

◦ set out requirements that will be placed on employers regarding record-keeping in relation to payments of SSP in respect of incapacity for work related to coronavirus

Disapplication of the waiting period

Under the normal SSP regime:

• an employee only becomes entitled to SSP where they have at least four consecutive days' sick absence (including Sundays and Bank holidays) during which they are too ill to work; this is referred to as a 'period of incapacity for work' (see Practice Note: Sick pay—SSP—eligibility)

• SSP is not payable in respect of the first three qualifying days of any period of entitlement (under subsection 155(1) of the SSCBA 1992). These are known as ‘waiting days’.(see Practice Note: Sick pay—SSP—limit of entitlement, under the heading ‘Waiting days’)

In respect of SSP payments relating to coronavirus (COVID-19) only, the intention is to remove the three waiting days so that SSP is payable from day one of a period of entitlement.

Clause 38 of the Bill deals with aspects related to disapplication of the waiting period:

• the power to make regulations is again broad; it allows simply, without qualification, that regulations may make provision to disapply section 155(1) of the SSCBA 1992 (ie disapply the subsection that creates waiting days in the first place) in relation to an employee whose incapacity for work is related to coronavirus

• once again, such regulations will provide a definition of when an employee’s incapacity for work is ‘related to coronavirus’ (for the purpose of disapplying the waiting days)

• once again, the regulations made will be allowed to have retrospective effect in relation to a day of incapacity for work that falls on or after 13 March 2020, ie all relevant SSP payments relating to periods between 13 March 2020 and the date the new regulations made take effect will have the waiting days disapplied too

Northern Ireland

Clauses 40 to 42 of the Bill make identical provision with regard to Northern Ireland as is set out above in relation to:

• refunds of SSP to employers paying out for coronavirus (COVID-19) reasons

• disapplying the waiting period before SSP may be claimed, where the claim is coronavirus (COVID-19)-related

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