As has been widely reported in the media, the Government has passed new regulations, approved by Parliament, extending the scope of mandatory vaccination for staff in the health and social care sector. In my latest blog post on mandatory vaccinations, I set out the amendment to the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 and what this could mean for the health and social care sector. NHS England has now published its Phase Two guidance on the implementation of these new regulations which came into effect on 7 January 2022, requiring all health and social care workers to be double vaccinated against COVID-19 by 1 April 2022.
Whilst there is ongoing speculation as to whether the mandate will be paused, in light of growing concern over the stability of the health and social care sector, it is important nonetheless to consider the latest guidance which provides an insight into the processes that must be followed in the healthcare sector and for all CQC registered healthcare providers on implementing vaccination as a condition of deployment (VCOD).
Previous guidance (Phase One)
The Phase One guidance sets out that it is the responsibility of the registered person to only employ or otherwise engage a person for the provision of a CQC regulated activity if they have evidenced that they are double vaccinated against COVID-19, unless they are exempt.
The exemptions apply to those who are:
- Under 18
- Medically exempt
- Participated in a clinical trial for a Covid-19 vaccine
- Pregnant and have a temporary exemption valid for 16 weeks post birth
- Not in the scope of the VCOD regulations
Process for those who are not fully vaccinated (Phase Two)
A three stage process has been outlined in the guidance to ensure a collaborative and fair opportunity for staff and their employers to discuss the vaccination requirement
- Engagement with unions
Employers should engage with trade unions / staff side representatives on VCOD, the process the employer intends to implement and potential dismissals arising from this.
2. Formal review process
The regulations triggered a 12 week grace period for workers to get vaccinated. The guidance recommends that a formal review process takes place during this period with staff who decline to disclose their vaccinate status or are unwilling to participate in the vaccine programme. When conducting such discussions, clear explanations must be given as to the consequences of remaining unvaccinated by the end of the grace period and the relevant dates in which all requirements must be complied with (first vaccination by 3 February 2022 and fully vaccinated by 1 April 2022).
During this stage, alternative options should be explored such as adjustments to their role or redeployment opportunities.
It is at the discretion of those engaging with the process as to how this is conducted e.g. in person, written correspondence, telephone call.
3. Formal meeting
In order to be fully vaccinated by the end of the grace period, health and social care workers must have been administered with their first dose of the COVID-19 vaccine by 3 February 2022. For those who remain unvaccinated, invitations to formal meetings should be sent out from 4 February 2022. Such meetings must take place in person or virtually and the individual will need to be notified of the potential outcome: dismissal.
Any dismissal thereafter will be on the grounds of contravention of a statutory restriction. The dismissals cannot take effect before 31 March 2022.
Notwithstanding the above, all employers engaging in this process must have due regard to the Equality Act 2010 and ensure a fair process, considered on a case-by-case basis. This, one would expect, includes a consideration of religious and / or cultural beliefs for declining to have the vaccination. Unlawful discrimination must be avoided and there should be equal opportunity between persons who share a relevant protected characteristic. A potentially challenging process for employers to undertake where it may be difficult for an individual to prove they have a protected characteristic.
Employers have due regard to whether it is possible to reallocate or amend the role of any employee so that they can remain within the sector despite being unvaccinated.
Patient care remains the paramount consideration throughout this process however and organisations should be proactive in identifying roles that do not fall within the scope of the regulations. In doing so, external recruitment processes may be paused to allow for internal redeployment.
Redeployment can be carried out on a temporary basis e.g. for women who are pregnant and have a short-term exemption (expiring 16 weeks after giving birth) or on a permanent basis. There are responsibilities on employers, employees and managers when engaging in the deployment process.
Proof of exemption
The government has provided operational guidance for the care home sector to assist with the standard of proof. The only means by which you can demonstrate your COVID-19 vaccination status (including exemption) is through the NHS COVID Pass unless you are pregnant or participating in a vaccine trial. The guidance for registered staff and registered persons is consistent with this.
The operational guidance can be found here.
It is worth noting that the NHS appointment card is not valid proof of vaccination status. If you have been vaccinated in other parts of the UK, information is available on the relevant government websites.
Therefore, it would appear that after 1 April 2022, the only form of evidence that employers can accept is the NHS Covid Pass. Please note that up until 1 April 2022, care home workers are still able to self-certify their exemption.
In the event that workers do not comply with this, the termination process should be considered as outlined below.
Where staff are engaged in a role that is within the scope of the regulations but choose to remain unvaccinated, termination will need to be considered. That being said, all other options should be given fair consideration including redeployment before resorting to dismissal. It is acknowledged that redeployment may not be a realistic possibility depending on any alternative roles that are available given the work place setting and likely exposure to vulnerable residents/ patients in other roles also. Should no other options be feasible, a lawful and formal process to dismissal must be carried out.
The grounds for dismissal will be contravention of statutory restriction or in the alternative “some other substantial reasons” where an individual refuses to confirm their vaccination status.
Where a notice period is served that extends beyond the 1 April 2022, employees will need to be redeployed or removed from a patient-facing role or placed on leave until their termination takes effect.
Reported employment tribunal decision in unfair dismissal case surrounding refusal of care home worker to be vaccinated
To see this in action, the employment tribunal in the very recently first reported case of Allette v Scarsdale Grange Nursing Home Ltd ET/1803699/2021 held that the summary dismissal of a care assistant that worked in a nursing home and refused to be vaccinated did not amount to unfair or wrongful dismissal.
When considering the matter, the tribunal acknowledged the worker’s concerns about the safety of the vaccine but found them unreasonable in the circumstances due to the very recent outbreak and deaths at the nursing home and the exponential growth of the pandemic.
By requiring Ms Allette to have the vaccine in order to keep her job, it is reported Ms Allette alleged her employer was interfering with her physical integrity in contravention of Article 8 (right to privacy) of the ECHR., The employer was found by the tribunal though to have a legitimate aim on the grounds of protecting the health and safety of residents, staff and visitors. Moreover, there was a legitimate concern over the withdrawal of insurance cover.
The tribunal considered it a social necessity of a pressing nature to have staff vaccinated. The article 8 rights of the residents, other staff and visitors had to be balanced with that of Ms Allette.
On the question of the care home operator having fair grounds, the tribunal found that the failure to be vaccinated fell within the realm of gross misconduct as set out in the disciplinary policy of the employer.
Although this matter was decided before the mandatory vaccination regulations came into effect, it is worth noting the tribunal’s stance on allegations of unfair or wrongful dismissal and the reasonableness of employers.
Whilst this decision is encouraging for care home operators dealing with dismissing employees refusing vaccination without a valid form of exemption, it ought to be noted that it is a first instance decision and therefore not legally binding. Each case also will turn on its own facts. No doubt there will be many more decisions to come and we will eventually arrive at a settled position established in case law on the question of the fairness of such dismissals.
It currently stands, there are no plans to mandate vaccinations for workers in the health and social care sector in Scotland, Wales and Northern Ireland but we will continue to monitor any changes throughout the United Kingdom.
Gina Southwood, Trainee Solicitor, BLM