The Bill sets out proposed emergency legislative measures to address the Coronavirus disease (COVID-19) outbreak. The legislation will be time-limited for two years and the Government has confirmed that it is neither necessary nor appropriate for all of these measures come into force immediately. Instead, many of the measures in this Bill can be commenced from area to area and time to time, so as to ensure that the need to protect the public’s health can be aligned with the need to safeguard individuals’ rights. These measures can subsequently be suspended and then later reactivated, if circumstances permit, over the lifetime of the Act.
Currently, MPs will next consider the Bill at Second Reading on Monday 23 March 2020. If the Business of the House Motion is approved, Committee of the Whole House stage and 3rd reading will also be taken.
The two key measures impacting on employers and employees are set out below.
Under Sections 7 and 8 of the Bill, a new form of unpaid statutory leave allows for ’emergency volunteers’ to claim compensation for some loss of earnings as well as expenses incurred, such as for travelling and subsistence. An ’emergency volunteer’ is a person who is certified by the appropriate authority as an emergency volunteer in health or social care, and has acted as an emergency volunteer in health or social care for a period for which emergency volunteering leave could have been taken.
These measures will enable relevant appropriate authorities (local authorities and relevant health and social care bodies – Schedule 6 Clause 4) to maximise the pool of volunteers that they can draw on to fill capacity gaps by addressing two primary deterrents to participation: risk to employment and employment rights, and loss of income. Schedule 6 sets out the entitlement for volunteers, with the key aspects being:
- 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 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 (clause 7).
- The 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.
Sections 37 and 38 allow for amendments to the current Statutory Sick Pay (SSP) system as it “does not provide the flexibility required for the response to managing and mitigating the effects of a COVID-19 pandemic”.
Under Section 37, the Bill will enable the Secretary of State to make regulations regarding the recovery from HMRC of additional payments of SSP by certain employers (previously indicated as being employers with fewer than 250 employees) for absences related to COVID-19. The ability to recover SSP is regarded as important so that the relevant employers are supported in a period when their payments of SSP are likely to escalate. It is also necessary to ensure that employees are incentivised not to attend work when advised not to do so for reasons of health security.
Ordinarily, statutory sick pay is not payable for the first three days of sickness – referred to as “waiting days”. As this may discourage people from taking sick days in order to prevent the spread of COVID-19, Section 38 of the Bill allows for the Secretary of State to make regulations to temporarily suspend the waiting days rule for those employees who are absent from work due to covid-19, meaning that SSP is payable from day one.
Other points to note
Video and audio links in courts proceedings
Under Sections 51 to 55, the availability of video and audio link in courts proceedings will be expanded to enable a wider range of proceedings to take place without the need for participants to attend in person. In connection with this, the Presidents of the Employment Tribunals in England and Wales and in Scotland have already directed that, from Monday 23 March 2020, all in-person hearings (hearings where the parties are expected to be in attendance at a tribunal hearing centre) will be converted to a case management hearing by telephone or other electronic means. The President of the EAT has directed that full hearings currently listed to be heard with all parties present in the EAT 23 March 2020 and 9 April 2020 will be converted to an Appointment for Directions and be heard by telephone unless in the individual case the President or another Judge of the EAT directs otherwise. In addition, all Rule 3(10) Hearings and Preliminary Hearings listed to be heard with one or more parties present in the EAT will be heard by telephone unless in the individual case, the President or another Judge of the EAT directs otherwise.
Emergency registration of health professionals and temporary registration of social workers
The Bill, under Sections 2 to 4, introduces new emergency registration powers for the Registrars of the Nursing and Midwifery Council (NMC) and the Health and Care Professions Council (HCPC) to help to deal with the increase in those needing medical care and any shortage of approved staff to help. On notification from the Secretary of State of an emergency, Registrars of the NMC and HCPC will be able to temporarily register fit, proper and suitably experienced persons with regard to an emergency, as regulated healthcare professionals. The NMC registration will cover nurses, midwives, and nursing associates, and the HCPC registration will cover paramedics, biomedical scientists, clinical scientists, operating department practitioners and any other of the ‘relevant professions’ it regulates.
Under Section 5 and 6, the Bill introduces emergency registration powers for the Registrar of Social Work England (SWE) and the Registrar of Social Care Wales (SCW) to be able to temporarily register fit, proper and suitably experienced persons with regard to an emergency, as social workers. The addition of emergency registrants to the registers held by SWE and SCW will help to deal with any shortage of social workers in the children’s and adult social care sectors as a result of increased staff absenteeism.
Should you require any assistance with your employment arrangements during this difficult period, do not hesitate to contact the Co-Head Partners of our Employment team. Please get in contact with Ewan Keen at 020 3206 2724 or via email and Tamara Ludlow at 020 3206 2739 or via email.