COVID-19: Daily Update – Thursday 26 March 2020

COVID-19: Daily Update – Thursday 26 March 2020

Coronavirus Act 2020

Having received royal assent on Wednesday 25 March 2020 the Coronavirus Act 2020 (the Act) is now established law. The Act grants the government certain emergency powers in order to combat the spread of COVID-19 more effectively and support businesses along the way. As Parliament has now adjourned for the Easter recess the Act was fast-tracked through the Houses in order to allow government some degree of flexibility until Parliament reconvenes on 21 April.
Though a number of ad hoc matters and government powers are addressed, the main focus of the Act is to ensure there are systems in place to support the NHS in any way necessary. Some major provisions to this end include processes for the emergency registration of medical professions, greater powers to forcibly admit someone to hospital, and the flexibility to use HMRC however necessary to deliver the government’s business support packages. Two sections which are of particular note to employers are:

Emergency Volunteers

The right: The Act introduces a new statutory right for workers and employees to take emergency volunteering leave to help support essential health and social care services. This right will apply to all workers and employees who have been certified by an appropriate authority (for example, a local authority, the NHS Commissioning Board or the Department of Health) to act as an emergency volunteer in health or social care. 

Process: Volunteers must obtain an “emergency volunteering certificate” from the relevant authorities which must then be provided to their employer to prove eligibility. Volunteers under this scheme will be obliged to give their employers 3 days’ notice.
Except for businesses with fewer than 10 staff, there is no provision for employers to refuse leave, for example because of operational need. However, should access to this scheme become readily available and several employees intend to volunteer concurrently, the employer may request that they apply for leave at times which do not affect the productivity of the business too severely.
Scope of leave: Volunteers will be entitled to 2, 3, or 4 consecutive weeks of ‘emergency volunteering leave’. Initially, the scheme is available for 16 weeks from 25 March 2020, which will be kept under review.
Workers can take one period of leave in each “volunteering period”.
Impact on existing terms and conditions of employment: During the employee’s emergency volunteering leave their contract of employment remains in full force and effect save for:
  • the employee’s renumeration – this period of leave will be unpaid;
  • and any employee obligations which are inconsistent with their volunteering work.
In return for their volunteer work, the Act grants powers to compensate emergency volunteers for loss of earnings, subsistence and expenses. However, it is unclear if this will be at full pay or subject to any cap.
Employee’s returning from emergency volunteer leave are entitled to return to the same position they left, and the Act amends the Employment Rights Act 1996 to protect returning employees from consequential detriments and dismissal. Employers should be careful though not to treat employees who do volunteer unfavourably as this may lead not only to claims under s47 and s104 of the Employment Rights Act 1996, but also to reputational damage.
Employer considerations: Employers are recommended to speak with their staff to understand if anyone intends to make use of this scheme. This will allow employers to plan more effectively for any operational changes. Employers should also consider whether they would offer to top-up an individual’s pay if the compensation offered by the government is subject to a cap.
It is currently unclear how this scheme will work alongside the Coronavirus Job Retention Scheme, and we are awaiting further guidance on this.
For further information on this scheme, please contact our employment team. 

Statutory Sick Pay

The Statutory Sick Pay (General) Regulations 1982 have already been amended to allow employees to take sick leave and receive statutory sick pay (SSP) when required to isolate themselves because of Coronavirus. The Act now adds further provisions to the Social Security Contributions and Benefits Act 1992 allowing HMRC to reimburse the employers making these SSP payments. The Act itself does not set out specific details of how this process will work as, for now, it merely grants powers to implement such a scheme. The Act also grants HMRC the power to introduce exceptions it deems appropriate and provisions for making deductions to set-off sums owed to HMRC against any SSP entitlements.
For employers, it is important to keep detailed records of all sick leave related to coronavirus as this is one proviso specifically mentioned within the Act, it may take some time to establish a payment procedure, and it is important to avoid any suggestion of fraud.
If you would like further guidance on the Act, emergency volunteer leave, or sick pay please contact our employment team.

Statutory Self-Employment Pay

One amendment which momentarily graced the pages of the Coronavirus Act as it passed through Parliament was the introduction of Statutory Self-Employment Pay. This amendment sought to guarantee a proportion of the income of self-employed individuals to much the same extent as the Coronavirus Job Retention Scheme supports employed ‘furloughed workers’. Despite measures to defer income tax self-assessment and raise universal credit entitlement, the lack of comparative support for self-employed individuals has been a point of criticism since the introduction of furlough leave.
In the Prime Minister’s Questions on 25 March Boris Johnson agreed that the government intend to achieve parity of support for all UK workers, however, a system which achieves this is particularly difficult for individuals not part of the PAYE system. A Treasury spokesperson has also disclosed that the Chancellor of the Exchequer will announce a package of further support for self-employed individuals on Thursday 26 March. In light of this the proposed amendment requiring the enactment of Statutory Self-employment Pay was withdrawn prior to royal assent on a basis of trust that the government would address the matter appropriately.

Data Protection and Cyber Security

The ICO have released new guidance based on some of their most frequently asked questions (HERE). The ICO’s overriding concern is that the coronavirus pandemic has led to certain unique challenges for businesses which may affect their ability to adhere to data protection principles. However, rather than reinforce these pressures the new guidance communicates a sense of understanding and support.
The ICO recognise in their guidance that businesses may fall below their usual standards of data protection due to various disruptions and assures that it will not penalise these setbacks provided the business is acting proportionately in the circumstances. Additionally, greater flexibility will apply concerning medical information shared internally which relates to preventing the spread of Coronavirus.
In a similar vein, several concerns have been raised by institutions such as the CBI and the National Cyber Security Centre relating to cyber security. The prevalence of homeworking poses an obvious threat to both the technical and physical protection of work equipment and personal data while exploiting Coronavirus concerns has also become an effective means to coordinate cyber-attacks.
Advice: Both the ICO and the National Cyber Security Centre have technical and cultural guidance on cyber protection while homeworking which employers may find useful. We also recommend employers review their existing data protection and homeworking policies to ensure they cater to the current working realities. If you would like assistance updating or introducing these or any policies, please contact our employment team.

Claire Knowles – Partner

Mark Alaszewski – Associate

Rebecca Mahon – Solicitor

Adam McGlynn – Trainee Solicitor

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