UK government plans to revamp holiday pay calculation for part-year workers
Out-Law Analysis | 30 Mar 2020 | 2:18 pm | 11 min. read
The Act is a piece of enabling legislation which gives all four governments across the UK the ability to take action, meaning many of the powers contained within its clauses to do not come into effect immediately.
The legislation will expire in two years and is subject to a six month parliamentary review. This review will be in the form of a vote on a motion stating the Act should not end.
Below is a summary of some of the core clauses contained within the Act.
The Act introduces new registration powers for Nursing and Midwifery Council and the Health and Care Professions Council, and in Scotland, provision is made to modify the National Health Service (Primary Medical Services Performers Lists) (Scotland) Regulations 2004 to support the deployment of temporarily registered health care workers by the NHS.
The Act introduces emergency registration powers for Social Work England and Social Care Wales. In Scotland, provision is made to allow Scottish government ministers to direct the Scottish Social Services Council to temporarily register retired social workers, those on a career break and social work students, who are in their final year of training. The Act will also provide that newly employed workers in social care services in Scotland will have a longer period of time to complete their registration, increasing this from six to 12 months.
The Act introduces a new form of unpaid statutory leave, and powers to establish a compensation scheme to compensate for some loss of earnings and expenses incurred by volunteers. These measures will enable relevant appropriate authorities – local authorities and relevant health and social care bodies – to maximise the pool of volunteers that they can draw on to fill capacity gaps by addressing two primary deterrents to participation: risk to employment and employment rights, and loss of income.
The Act introduces temporary amendments to several existing pieces of mental health legislation across the England, Scotland and Northern Ireland to allow certain functions relating to the detention and treatment of patients to be satisfied by fewer doctors’ opinions or certifications. Temporary amendments also allow for the extension or removal of certain time limits relating to the detention and transfer of patients.
The Act includes powers to provide indemnity coverage for clinical negligence of health care workers and others carrying out NHS and health and social care activities connected to care, treatment or diagnostic services provided under the arrangements for responding to the Covid-19 pandemic.
The Act allows the procedure for discharge from an acute hospital setting for those with a social care need to be simplified. It also allows that, if a local authority has not charged an individual for their care during the Covid-19 pandemic, they are able to do so retrospectively after the conclusion of this period subject to financial assessment.
These powers are operational immediately and they enable the secretary of state to support local authorities by directing them to comply with this guidance.
The Act provides the ability to increase the number of judicial commissioners should the effects of Covid-19 mean that there is a shortage
The Act also creates a regulation-making power to allow the secretary of state to vary the appointment process for judicial commissioners at the request of the investigatory powers commissioner where there are too few judicial commissioners available to exercise their functions as a result of the effects of Covid-19. The variation would allow the commissioner to directly appoint temporary judicial commissioners for a term of up to six months, renewable to a maximum period of 12 months.
The Act creates a regulation-making power to enable the timespan of an urgent warrant to be varied at the request of the investigatory powers commissioner, extending the period for retrospective judicial commissioner authorisation and the lifespan of the warrant for up to 12 working days rather than the current five working days.
The Act confers a regulation-making power on the secretary of state so that she may vary the statutory retention deadlines for biometric material, such as fingerprints and DNA profiles, taken under various pieces of existing legislation.
The legislation creates a power for the government to act if a member or members of the food industry were to refuse to comply with voluntary requests for information in order to ensure the government has the necessary information to build a clear understanding of the situation, make informed judgements and respond effectively.
The Act modifies existing legislation to dis-apply the requirement that coroners must conduct any inquest with a jury where they have reason to suspect the death was caused by Covid-19. In respect of Northern Ireland, the Act makes corresponding provision, including in relation to inquests into a death in prison from natural illness.
The Act modifies the current legislation to allow a wider range of health professionals to administer vaccinations and immunisations, in accordance with existing regulatory provisions about the administration of vaccines in the Human Medicines Regulations 2012, so they can respond as flexibly as may be required to the pandemic.
The Act includes three powers relating to education:
The Act enables the secretary of state to make regulations regarding the recovery from HM Revenue & Customs (HMRC) of additional payments of SSP by certain employers for absences related to Covid-19.
The Act 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.
The Act makes changes for the NHS pension scheme in England and Wales, as well as corresponding changes in the respective NHS pension schemes in Scotland and Northern Ireland.
The Act enables steps to be taken to ensure that arrivals at UK borders are directed to key locations where there will be sufficient Border Force officers to process them.
The Act provides powers for the secretary of state to direct a port operator – i.e. a person concerned in the management of a port – to suspend relevant operations, partially or wholly. The power will also provide for the secretary of state to issue consequential directions to other parties if the secretary of state considers it appropriate in connection with the primary direction.
The Act includes provisions for the screening and isolation of certain persons, including powers to impose other restrictions and requirements, and revokes the Health Protection (Coronavirus) Regulations 2020 that came into force in February. The Act also:
The Act gives the secretary of state the power to prohibit or restrict events and gatherings, and to close premises, if the public health situation deems it necessary streamlining existing legislation in England and Wales, and extending the power to Scotland and Northern Ireland too, where there was no equivalent legislation.
This can be deployed if, having had regard to the relevant advice, such a prohibition or restriction would:
The government has also brought into force in England on 26 March regulations, under the Public Health (Control of Diseases) Act 1984 rather than this Act, which give legal authority to the constraints on our activities. These regulations require the closure of pubs and restaurants and limit our right to leave the home except for prescribed purposes. The Act might be used to give effect to any enhanced measures the government wishes to enforce.
The Act amends existing legislation so as to enable the use of technology either in video/audio-enabled hearings in which one or more participants appear before the court using a live video or audio link, or by a wholly video/audio hearing where there is no physical courtroom and all participants take part in the hearing using telephone or video conferencing facilities.
The Act provides for restrictions to be imposed on individuals who are potentially infectious and that the decision to impose such restrictions can be appealed to magistrates’ court. The Act therefore makes provision that such hearings should be conducted fully by video link, unless the court directs otherwise, given the person appealing the decision would be subject to restrictions, and there is the risk of passing on the infection if they were to travel to court.
The elections in England scheduled for 7th May 2020 are postponed until 6 May 2021. This includes the following elections:
The Act enables the government to temporarily modify the existing procedures around introducing national insurance contribution changes, removing the statutory requirement that a report from the Government Actuary Department accompany secondary legislation implementing rate changes. The temporary modifications will last for two years from the day the Act receives Royal Assent.
The Act provides that financial assistance provided for “coronavirus-related” activity does not breach a statutory limit of £12 billion for financial assistance to business.
The Act gives the Treasury the power to direct HMRC to create new functions in relation to Covid-19. Specifically, it enables HMRC to pay grants to businesses to deliver the coronavirus job retention scheme.
The Act creates a power to make regulations to relax some requirements in relation to local authority meetings for a specified period with the intention of reducing the strain on local authority resources.
The Act temporarily extends the maximum duration of BID arrangements to ensure consistency of the BIDs legislation with the delay introduced for local government elections. BID arrangements that are in place on the day of Royal Assent but are due to terminate on or before 31 December 2020 will be extended until 31 March 2021.
The Act delays when landlords are able to evict tenants either by extending the notice period that a landlord is required to serve on a tenant to at least three months or, in some cases, creating a three months’ notice requirement where a requirement to give notice does not currently exist. The clause does not prevent a landlord from serving a notice of intention to possess, nor does it end a tenant’s liability for rental payments.
The Act ensures that leases cannot be forfeited for non-payment of rent for a three-month period for all types of commercial tenants, with a power to extend if it is needed. This option encourages businesses that are in a position to make their rent payment to do so, whilst providing three months’ grace to those that are struggling.
The relevant period commences on the date of Royal Assent and ends on 30 June 2020, with a power to extend by statutory instrument if it is needed.
Landlords will still be able to claim forfeiture after that the three months period and will be protected for the period of the forfeiture moratorium the non-collection of rent by the landlord during the period will not be treated as a waiver of the right to pursue rent.
The moratorium will only apply to non-payment of rent. Landlords should continue to be able to exercise other rights of forfeiture. For example a tenant would not be allowed to cause wilful damage.
The Act was written by the UK government in conjunction with opposition parties in Westminster, and the devolved administrations in Scotland, Wales and Northern Ireland to ensure a UK-wide approach is being taken to tackling the pandemic.
Ahead of the Scottish Parliament's vote on the legislative consent motion, the Scottish government published a paper considering the Bill and drew the following conclusion: "It is the view of the Scottish government that it is preferable in terms of ensuring that government and public bodies have powers expediently to respond to the current Covid-19 pandemic that the relevant provisions of the Coronavirus Bill which fall within the legislative competence of the Scottish parliament or alter the executive competence of the Scottish ministers should be considered by the UK parliament."
The Scottish Parliament subsequently voted in favour of the following legislative consent motion which stated:"That the parliament agrees that the relevant provisions of the Coronavirus Bill, introduced in the House of Commons on 19 March 2020, so far as they fall within the legislative competence of the Scottish Parliament or alter the executive competence of the Scottish ministers, should be considered by the UK parliament."
This means that the Scottish Parliament has given its consent for Westminster to enact legislation on devolved areas of policy. However, as the Coronavirus Act is largely a piece of enabling legislation the aspects of it that that affect devolved policy will be for Scottish ministers to implement or approve.
In addition to this, the Scottish government is due to introduce its own piece of legislation covering devolved areas of policy that have not been included in the Coronavirus Act.
The Northern Ireland Assembly voted in favour of the legislative consent motion with the Assembly agreeing with the opening remarks of the health minister in England that ensuring a consistent approach across the whole of the UK is needed to meet the challenges the country faces.
The Welsh Assembly also agreed to the provisions in the Coronavirus Act should be considered by Westminster in so far as they fall within the legislative competence of the national assembly for Wales.
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UK government plans to revamp holiday pay calculation for part-year workers