Update: Mandatory vaccinations for the healthcare sector

On 6th January 2022 new legislation was published which makes the Covid-19 vaccination a mandatory requirement for staff in healthcare settings in England from 1 April 2022 (unless they are exempt). NHSE has published guidance to assist healthcare organisations in implementing the regulations. We provide a summary below of the guidance and address what this means for NHS and other healthcare sector employers.

The Regulations

The regulations provide that a registered person (which includes for example NHS Trusts and GP practices) can only deploy, or otherwise engage a person for the purposes of the provision of a CQC regulated activity, in which they have direct, face to face contact with patients and service users, if the person provides evidence that they have been vaccinated (unless they are exempt).

The regulations come into force from 1 April 2022. The government has provided a grace period of 12 weeks from the publication of the regulations to enable employers (and employees who wish to take steps to become vaccinated or prove they are exempt) to prepare to meet these requirements.

What steps do employers need to take to ensure compliance from 1 April 2022?

Between now and 3 February 2022 it is recommended that employers review the roles that are likely to fall within scope of the regulations, and discuss with staff information on vaccination status and ascertain what their intentions are on vaccination. Staff should be given a reasonable opportunity to be vaccinated or to obtain evidence to support that they are exempt where that is applicable. For staff who do not intend to be vaccinated the possibility of redeployment should be considered. Where this is not possible, dismissal will need to be considered.

Who is in scope?

Employers need to determine who is within scope of the regulations. This includes frontline workers but will also include non-clinical workers who are not directly involved in patient care. There are some groups of workers who this will evidently apply to, for example porters, cleaners and receptionists. The guidance also suggests that less obvious roles will be within scope of the regulations including for example those working to provide services such as finance, where those workers have direct face to face contact with patients and service users. It is suggested that even workers with incidental contact with patients (for example where their area of work is based near a clinical area) will be in scope of the regulations. It appears that the regulations therefore intend to bring a wide range of individuals in scope, although determination of who falls precisely in scope is left to the organisation to determine.

Where there are roles which carry some uncertainty as to whether they are in scope the guidance provides that employers must record their rationale for the decision where it is deemed out of scope.

Formal processes – termination of employment

For employees who fall within the scope of the regulations and who are not vaccinated (or exempt) it will be unlawful for them to be employed after 1 April 2022. If they cannot be redeployed (or their job reconfigured), to a position which is not within scope of the regulations then dismissal will need to be considered. 

It is important that employers follow a process before dismissing employees to avoid claims of unfair dismissal. 

The guidance outlines a three stage formal process that should be followed; it suggests there should be:

Step one: engagement with unions - employers should engage with trade unions and staff side representatives about the possibility of dismissals, the process that they intend to follow as well as any opportunities for redeployment 

Step two: formal review process - employers are encouraged to undertake a formal review process with staff who refuse to be vaccinated (and are not exempt) and those who decline to disclose their vaccination status or for whom vaccination status cannot be ascertained. These discussions should explain clearly by reference to the key dates mentioned above the consequences of remaining unvaccinated (or refusing to disclose vaccination status). The possibility of redeployment should also be discussed, or whether there are any adjustments that can be made to the individual’s role, and where this is not possible dismissal is likely to be considered.

Step three: formal meeting - from 4 February 2022 employers should invite staff who remain unvaccinated to a formal meeting to consider whether their employment should be terminated. Notice should not expire before 31 March 2022.

Where an individual is dismissed, the dismissal is likely to be on the grounds of a contravention of a statutory enactment (illegality) or some other substantial reason (SOSR) depending on the circumstances. These are both potentially fair reasons for dismissal and so provided the employer has followed a fair procedure (such as the three stage procedure outlined above) it is likely to be able to show that any resulting dismissals are fair.

Redeployment and pay protection

Employers are expected to continue to consider redeployment opportunities during an employee’s notice period. Consideration should also be given to whether an individual’s role can be reconfigured to enable the individual to continue working in that role. Whether this is reasonable or practical will need to be considered on a case by case basis. 

For those staff members who are redeployed into new roles they should commence these roles on 1 April 2022 (or earlier if agreed). 

Staff who are redeployed permanently into a role which is at a lower salary/band are not eligible for pay protection. However, if redeployment is for a temporary period for example where an employee has a good reason for not being fully vaccinated until shortly after 1 April 2022 (this might occur where an individual has caught Covid-19 and has been unable to receive a vaccination in time) or due to being pregnant (there is a specific time limited exemption for pregnant women) then they may be eligible for pay protection in accordance with local arrangements.

Temporary redeployment should also be considered for individuals who are serving notice which extends beyond 1 April 2022. If this is not possible then consideration should be given to whether the individual should be placed on leave. Payments in lieu of notice may be made, subject to the terms of an individual’s contract and an organisation obtaining any necessary external approvals. 

Other risks – discrimination 

There will inevitably be some individuals who have religious or moral objections to the vaccine, and these may amount to protected religious or philosophical beliefs. Employers must still have regard to the Equality Act 2010 and the effect of any decisions that it makes on those with a protected characteristic. 

With the implementation of the regulations just around the corner now is the time for employers to take action to ensure that by 1 April 2022 they are in a position to comply with the regulations. 

Comment

The possibility of organisations having to dismiss large numbers of their workforce will be a concern, especially in the current climate where services are already chronically stretched. It is unlikely that these pressures will ease significantly by 1 April 2022. Whilst organisations are advised to commence formal processes there should also be a focus on supportive and effective communication with staff to encourage uptake of the vaccination. Where dismissal is unavoidable, care needs to be taken to ensure that this is managed fairly to avoid the legal pitfalls of taking such action.

If you have any queries about the implementation of mandatory vaccinations to your workforce, or the steps you can take to prepare for this change, please get in touch with your usual point of contact at Hill Dickinson or a member of our Health Employment team.