Emergency legislation (COVID-19) | three new developments for UK employers

For many UK employers, accessing the Coronavirus Job Retention Scheme has been a key focus as they seek to preserve their business and support their workers. The latest guidance from HMRC provides some welcome clarity on the key actions employers need to take if they wish to benefit from the Scheme, as well as focusing minds on what happens when the Scheme ends.

Other developments UK employers must be aware of include the following: 

1. Statutory volunteer leave to support essential health and social care services

The Coronavirus Act 2020 has now been passed and makes provision for workers to take leave from their employment to support our essential health and social care services through volunteering.  The main points to note are that:

• During the 'volunteering period' (which at present is set to run for 16 weeks but may be extended), an eligible employee may take one period of volunteering leave in a block of two, three or four consecutive weeks.  The provisions do not apply to employers with less than 10 employees.

• To take leave an employee must give three working days' notice and produce a certificate from the appropriate authority certifying their approval as an emergency volunteer and the dates when they will be acting as such. An employer cannot reject a request on operational grounds.

• The same statutory protection applies for those taking volunteering leave as for those taking statutory family leave (such as maternity, shared parental, or adoption leave ). That means their employment contract continues, save for remuneration, and they have a right to return to their same role at the end of leave.  Likewise, a worker employee must not be subjected to a detriment, dismissed or selected for redundancy for taking volunteering leave (or because it is thought they intend to do so).  Any dismissal due to their taking volunteering leave will be automatically unfair (no qualifying period of employment applies) and compensation is uncapped.

• The government will compensate workers for loss of earnings through volunteering as well as providing a travel and subsistence allowance.

We are now waiting for the relevant statutory regulations to bring this new right into force and also provide details of how employees who take volunteering leave will be compensated. In the meantime, a request by an employee to volunteer under these provisions should not prevent that employee being furloughed in the meantime where this is necessary. The new guidance issued by HMRC last week makes clear that an individual can carry out volunteering during furlough leave (workers must not, however, provide any services to the employer which generate revenue) and we wait to see how a request to volunteer under the statutory provisions sits with furlough leave. 

2. Holiday carry-over where it is 'not reasonably practicable' to take holiday due to COVID-19

New regulations which came into force on 26 March 2020 amend the prohibition on carrying over four weeks of statutory holiday under the Working Time Regulations 1998 (WTR). The WTR already allow the remaining 1.6 weeks' statutory leave to be carried over for up to a year by agreement).

This new provision to carry-over will apply where 'in any leave year it was not reasonably practicable for a worker to take some or all of the leave to which the worker was entitled… as a result of the effects of coronavirus (including on the worker, the employer or the wider economy or society)'.  However, an employer may only deny a worker's request to take leave in such circumstances where it 'has good reason to do so'.

The wording of the amended regulations makes clear that this new right is intended to support key industries that may otherwise be left short-staffed, such as food and health, during COVID-19 – enabling staff to 'continue working in the national effort against the coronavirus without losing out on annual leave'.  This does not detract from the fact that many employers are conscious of the need to ensure workers take rest and recuperation, particularly at these challenging times, both at home and work; as well as ensuing that workers are ready and willing to support their business once the current emergency has passed. Employers may therefore still wish to require employees, particularly those working from home, to take holiday and put in place a temporary policy on how employers are expected to use their holiday during this period. A question mark remains over whether employers can require or permit employees to take annual during any period of furlough; it is hoped pending guidance/regulations will clarify this point.

3. Key workers and travel to work

At present workers are permitted to travel to and from work where they need to do so if they are unable to work from home. Travel is not yet restricted to key workers (those who have been identified as critical to the Covid-19 response or who work in one of the critical sectors and who have been identified as such for childcare purposes).

However, since the imposition of increased restrictions on individual movement outside the home, there has been a noticeable greater police presence stopping people on our streets to question the reason for their travel. Employers who do still require travel to work should now consider issuing employees with a letter confirming the employer's name and the reason why their travel is required.

Next steps

Employers should ensure that clear company guidelines are now in place regarding volunteering leave, taking holiday and who is permitted to still attend the employer's premises or travel for work.  However, employers should remind managers to remain sensitive to an individual's particular circumstances. For example, a request to provide support to another individual due to COVID-19 may fall outside the new statutory volunteer provisions but should be supported. Managers should be reminded to contact HR to understand the position and ensure consistency of approach so far as possible.

April also marks a number of employment changes coming into force, including changes to the s1 statement of particulars and the introduction of a requirement for these particulars for workers.  At a time when the prospect of termination costs will be particularly relevant, employers should note that:

• From 6 April 2020, employer's class 1A national insurance contributions (NICs) will be payable on termination payments above £30,000. The whole termination payment is still exempt from employee NICs.  The new rules will only apply in respect of dismissals taking place on or after 6 April 2020 and employers will need to factor in this additional cost.
• The annual employment tribunal compensation limits increase for all dismissals on or after 6 April 2020. A week's pay for basic award and statutory redundancy purposes increases from £525 to £538 and the maximum compensatory award (subject to the threshold of 12 months' pay if lower) increases from £86,444 to £88,519.

However, the IR35 reforms due to come in on 6 April 2020 have now been delayed until April 2021 and the government has confirmed that it will not be enforcing the gender pay gap reporting obligations for 2020. Qualifying employers are set to file their next gender pay gap reports based on a snapshot of their data on 5 April 2019 on 4 April 2020.