As the COVID-19 pandemic continues to send shockwaves across the globe, it is hard to escape the impact of the virus on individuals and businesses here in the UK. On 19 March 2020, with the stated purpose of enabling a response to an emergency situation and managing the effects of the pandemic, the UK Government introduced legislation in the form of the Coronavirus Bill 2020.
It is anticipated in the explanatory notes to the Bill that a severe pandemic could infect up to 80% of the population leading to a reduced workforce and increased pressure on health services and death management processes. The Bill therefore contains a range of extraordinary temporary measures that either amend existing legislation or introduce new statutory powers to allow the government to respond quickly in order to mitigate these impacts.
Whilst the Bill has wide-reaching implications in a number of different areas, we have summarised below the specific measures that may be relevant to UK employers.
Emergency Volunteering Leave
As anticipated, the Bill introduces a temporary new form of unpaid statutory leave for emergency volunteers.
An eligible employee will be entitled to take emergency volunteering leave for a period of two, three or four consecutive weeks during an initial 16 week period which will commence on a date to be determined. If necessary, the relevant national authority will then be able to set further periods of up to 16 weeks (or less if the provisions are due to expire before then) in which such leave can be taken. An employee will not be able to take more than one period of leave within each 16 week period but may volunteer more than once in successive periods.
An employee must notify their employer in writing that they intend to be absent from work at least three days prior to the first day of leave. He or she must also obtain a certificate from an appropriate authority and provide the employer with a copy of this.
During any period of emergency volunteering leave, an employee will be entitled to benefit from (and will continue to be bound by) all the terms and conditions of employment which would have applied had he or she not been absent, with the exception of wages or salary (in relation to which see further below). Notably, with respect to pension rights, an employee will be treated as if their employment-related benefit scheme includes an emergency volunteering rule, even if it does not. Such rule would ensure that the employee is not disadvantaged because they have elected to take the leave, specifically in relation to membership, accrual of rights and/or determination of the amount of benefit payable under the scheme.
In addition to the above, an employee has the right to return to the job in which they were employed before the leave was taken on terms that are no less favourable and with the same seniority, pension and similar rights. An employee is also protected from being dismissed or subjected to a detriment on grounds that they took, sought to take or otherwise made use of the benefits of emergency volunteering leave or their employer believed that would do so.
The Bill also requires the Secretary of State to create a scheme to compensate volunteers for loss of earnings and travelling and subsistence expenses but further details of this are awaited.
Finally, employees will not be eligible for emergency volunteering leave if they work for an employer with less than ten employees, are employed by the Crown or specified parliamentary bodies or work in the police service.
Statutory Sick Pay (SSP)
On 13 March 2020, the Statutory Sick Pay (General) Regulations 1982 were amended such that qualifying employees who self-isolate on the basis of advice published by Public Health England (or the devolved health authorities) and are, therefore, unable to work will be entitled to SSP, currently £94.25 per week for a maximum of 28 weeks. These provisions will be in place for eight months.
Now, the Bill introduces further complimentary provisions enabling HMRC to make regulations that allow qualifying employers to recover SSP payments for absences related to COVID-19 and specify the procedures for making any claims in this respect. The regulations may in particular control the levels of rebate, to whom the rebate is paid, and the period for which the rebate will be available. They may also require an employer to keep records in relation to payments of SSP in respect of incapacity for work related to coronavirus.
In addition, the Bill provides that the Secretary of State may make regulations to suspend the waiting period of three days before SSP becomes payable in the case of incapacity for work that is related to coronavirus. The government has already committed to making this change and the Bill provides that such provisions could have retrospective effect to apply to any day of incapacity for work that falls on or after 13 March 2020.
Closure of premises
The Bill permits the Secretary of State to make a variety of directions in relation to events, gatherings and premisesif they consider there to be a threat to public health due to coronavirus. Perhaps most pertinent to employers is the power to close or restrict entry to any premises or secure restrictions in relation to the location of persons in such premises, for the purpose of helping to control the transmission of coronavirus or to facilitate the most appropriate deployment of medical emergency personnel and resources. A failure by any company to comply with such a direction without reasonable excuse would constitute a criminal offence that is punishable on summary conviction by a fine. Any officer of such company may also liable to be prosecuted and punished accordingly.
The Bill suspends certain rules that apply in the NHS Pension Scheme in England and Wales so that healthcare professionals who have recently retired can return to work and those who have already returned can increase their hours without there being a negative impact on their pension entitlements.
National Insurance Contributions (NICs)
The Bill allows the government to temporarily modify some of the existing procedures with respect to introducing NICs rates changes for employees, employers and the self-employed. The Bill also provides that regulations may be made to alter the amount of the Employment Allowance and who qualifies for it.
Legislative process, commencement and expiry
The Bill still needs to go through various expedited stages before proceeding into legislation. It is expected that it will pass through the House of Commons on Monday, with the House of Lords having up to two days thereafter to debate and suggest amendments. Given the emergency nature of these measures, it is highly unlikely that the Lords will make significant amendments (if any). Consequently, the Bill is expected to become law on or around the 26 or 27 March 2020.
Finally, the majority of the measures in the Bill will commence immediately once it is passed, although some provisions, including those in relation to emergency volunteers and SSP, will require secondary legislation. Save for some limited measures that predominantly concern the emergency registration of those in the healthcare sector, most of the provisions in the Bill will expire after two years from the day it is passed (unless this period is otherwise extended or shortened).