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Coronavirus update – Collective Consultation, Holidays and Volunteer Leave!

30 Mar 2020

Furloughed Leave – Collective Consultation

The further government guidance on furloughed leave published on Thursday night makes specific reference to a possible requirement to collectively consult with employees being placed on furloughed leave. It states:

If sufficient numbers of staff are involved, it may be necessary to engage collective consultation processes to procure agreement to changes to terms of employment.”

As the job retention scheme is an alternative to laying employees off without pay or making redundancies, it has so far been unclear whether employers should be consulting with employee representatives, where 20 or more staff are to be placed on furloughed leave due to the alternative being redundancy. Indeed legal opinions on this point have so far been conflicting, with some suggesting that, provided employees agree to furloughed leave (which the vast majority do), then consultation is unnecessary and claims are unlikely.

However, now that the government’s guidance makes specific reference to this, it increases the risk that employees could claim a protective award for failure to collectively consult where 20 or more dismissals were contemplated. This award could be up to 90 days gross pay per employee and employees do not need a minimum length of service to pursue this claim. Employers are also obliged to complete form HR1 to notify the state and failure to do so is a criminal offence. Many employers are however, despite the risks, taking a pragmatic view due to the need to place employees on Furloughed Leave quickly, with little or no collective consultation being carried out.

If you are to place more than 20 employees on Furloughed leave, please consult the team to explore in further detail the risks and how they can be minimised.

Coronavirus – Carrying over annual leave

The government has announced it is allowing workers to carry over up to four weeks annual leave into the next two leave years, where it is not reasonably practicable for them to take some, or all, of the holiday they are entitled to due to the coronavirus. This relates only to the 4 weeks leave under EU law and any additional leave entitlement will not be affected by this change.

Emergency Volunteer Leave

The Coronavirus Act 2020 introduces a new statutory right for workers to take emergency volunteer leave to help support essential health and social care services.

Coronavirus

The emergency leave will work as follows:

  • Workers can take emergency volunteer leave in blocks of two, three or four weeks. Workers can take only one period of leave in each “volunteering period”, which is  initially a 16-week volunteering period. Subsequent volunteering periods can be set by the Secretary of State.
  • This right will be available to workers who have been certified by an appropriate authority (a local authority, the NHS Commissioning Board or the Department of Health) to act as an emergency volunteer in health or social care.
  • Workers will need to give their employer three working days’ notice and provide the certificate confirming their approval as an emergency volunteer. There is no provision for employers to refuse leave, for example because of operational need. However the following workers will be exempt : workers employed or engaged by businesses with fewer than ten staff, Crown employees, parliamentary staff and employees in police service.
  • The leave is unpaid but a compensation fund may compensate volunteers for loss of earnings, travel and subsistence. It’s unclear whether the compensation will replace  full pay or whether it will be subject to a cap.
  • Workers will remain bound by, and entitled to the benefit of, all of their terms and conditions of employment, other than those relating to pay. They will have a statutory right to return to the same job on the same terms.
  • Workers who seek to take emergency volunteer leave, or whose employer believed they were likely to, will be protected from any detriment. Furthermore any dismissal will be treat as automatically unfair (for which there is no compensatory cap and no minimum length of service requirement).

For further information contact our Employment Team, or call 0191 232 8345.