Coronavirus Act and emergency volunteering leave

As the NHS and social care sector continues to manage increasing numbers of patients needing medical treatment, health and social care services are also facing mounting pressures from staff shortages due to sickness, imposed isolation and caring responsibilities. Organisations are therefore putting in place contingency plans to deal with staff shortages – this includes using volunteers as an additional source of workforce supply. The provisions in the Coronavirus Act provide the legislative measures needed to support the NHS and social care sector to increase the available health and social care workforce in particular.

So, what do the emergency provisions say in the Coronavirus Act?

The Coronavirus Act (sections 8, 9 and schedule 7) introduces a new statutory right for workers in the UK to take ‘emergency volunteering leave’ (EVL), a new type of leave created to enable workers to volunteer in the health and social care sector. But, we still await regulations bringing these provisions into force.

EVL: who is entitled to take it?

Workers who have obtained an ‘emergency volunteering certificate’. This is a certificate issued by a relevant authority which states that the person has been approved as a volunteer in health or social care. The Act lists a number of ‘relevant authorities’ who can issue certificates to workers from the Department of Health and Social Care, a local authority to the NHS Commissioning Board.

EVL: exempt workers

• Businesses with less than 10 workers
• Crown employees
• Staff of the House of Commons and the House of Lords
• Those employed under a contract of employment with the police service

EVL: how long?

The certificate must specify the dates for which the worker will volunteer and this can be anything from two, three or four consecutive weeks. The worker must give their employer at least three days’ notice before taking EVL and provide them with a copy of the certificate.

A worker can only take EVL once in each ‘volunteering period’. The first volunteering period is 16 weeks from the date Schedule 6 comes into force. But the Secretary of State can make regulations to create subsequent 16-week volunteering periods. Subsequent volunteering periods do not have to follow immediately from the end of a previous period.

EVL: rights of workers

Schedule 7 of the Act provides a range of employment protections to workers who take EVL, such as a right to return to their work in the same position as if they had not been absent. Similarly, provisions are included to ensure that a worker's pension rights are not adversely affected by taking EVL.

Part 3 of schedule 7 makes a number of modifications to the Employment Rights Act 1996, such as:

• Protecting workers who take or seek to take EVL from suffering any detriment.
• The 1996 Act will also be read as including a new section 104H, providing that if an employee is dismissed for taking or seeking to take EVL, the dismissal will be automatically unfair.

EVL: compensation to workers

The Act does not provide for EVL to be paid. However, section 9 provides that the Secretary of State must make arrangements to compensate emergency volunteers for loss of earnings, travel and subsistence costs. We await regulations that will set out the conditions a volunteer must satisfy to be eligible for compensation and the way in which compensation should be claimed with the Government meeting the costs.

NHS Indemnity cover for emergency volunteers

Do volunteers supporting the NHS response to the coronavirus outbreak have indemnity cover?

Yes. NHS Resolution state in its Coronavirus outbreak indemnity FAQs dated April 2020 that:

“Where volunteers are asked by NHS trusts to help deliver NHS services, and a volunteer agreement is in place between the trust and the volunteer or volunteer organisation, then indemnity for clinical negligence will be provided under the Clinical Negligence Scheme for Trusts.”

Guidance for staff managing new volunteer requests in the NHS

One of the key issues HR managers will be considering is how to manage the influx of new requests from the public to support their health and care organisation during the pandemic. Central to this issue is planning for how you can recruit and onboard new volunteers quickly supported by a volunteer agreement.

Supporting organisations is NHS England/Improvement’s newly published guidance, Advice regarding NHS volunteers relating to COVID-19 (version dated 3 April 2020) to assist with this process. It includes additional guidance including information governance, onboarding volunteers, volunteer management and Disclosure and Barring Service arrangements.

In addition, NHS Employers has published supporting resources on recruiting new volunteers – accepting that the volunteering roles across NHS organisations will vary depending on the nature of the service, existing roles and an organisation’s partnerships with voluntary sector organisations.

Points to Consider when Recruiting Volunteers:

NHS Employers has provided detailed guidelines on pre-employment checks, including the temporary measures to support an increased number of voluntary workers applying at very short notice.

• Criminal Record Checks - The Disclosure and Barring Service is allowing employers to fast track certain checks to allow individuals to start volunteering where a risk assessment has been undertaken and appropriate safeguards for monitoring and supervision are in place, until full disclosure is received.

• Video Conferencing to Conduct Interviews - the employing organisation remains responsible for seeking the necessary assurances that the person they interview online is actually the person presenting themselves for work, or is carrying out work on their behalf, if they will be working remotely.

• Verification of original documents, Identity Checks and Right to Work - temporary changes allow employers to accept scanned and emailed copies of original documentary evidence, but only in urgent circumstances. Original versions of documents should be received as soon as practicable. Employers will need to record that checks have been completed remotely.
• Professional registration and qualification checks - employers should continue to verify workers against the relevant professional register. Certain temporary registers have been set up in addition to the statutory registers. Employers must have the consent of the health professional and their registration number to check registration.

• Work Health Assessments - employers should continue to follow pre-existing requirements as outlined in the Work Health Assessment Standard.

• Reference and employment history - as a minimum, employers should seek at least one reference from the individual’s current or previous employer either via email or over the phone. In certain circumstances, employers will need to base any recruitment decision on what information they can reasonably obtain about the individual through the wider range of checks.

• Record Keeping - employers should ensure they maintain a record of all steps undertaken in the recruitment process, with written confirmations from relevant individuals where necessary. Information and documents provided should be retained and stored, subject to GDPR considerations.

The NHS has a strong and rich history of being supported by volunteers.  Never has the role of volunteers been so crucial to the running of the NHS and delivery of patient care.  However, even in these emergency circumstances, the necessary onboarding processes must clearly not be sacrificed in the name of urgency.