The government announced on 31 January that the requirement for social care and patient-facing NHS staff to be vaccinated against COVID-19 as a condition of deployment is being reconsidered. Following the Secretary of State’s announcement in the House of Commons that vaccination as a condition of deployment was “no longer proportionate”, NHS England and Improvement have written to NHS bodies, requesting that employers do not serve notice on unvaccinated staff.
The government’s aim is to revoke the Regulations, subject to parliamentary approval. This is both the Health and Social Care Regulations which required vaccination as a condition of deployment by 1 April as well as the Regulations imposing a similar requirement on care homes in November 2021. The Secretary of State for Health cited the declining severity of the impact of the Omicron COVID-19 variant, along with widespread immunity, as the main reasons for the policy reversal. There will be a two-week consultation and then a statutory instrument will be presented to Parliament for approval. The consultation has not yet been published.
Since the NHS Regulations were approved by parliament in December, NHS providers have been grappling with the practical and legal difficulties in implementing them, and seeking to persuade their staff to accept their first vaccine dose before 4 February. It had been estimated that, nationally, up to 80,000 unvaccinated NHS staff could have been dismissed on 1 April if the regulations had been enforced. There had been widespread uncertainty among NHS providers about which employees and contractors should be treated as having direct face-to-face contact with service users, and therefore within the scope of the vaccine mandate. Social care providers have criticised the regulations for exacerbating staff shortages in the sector.
The government has asked professional regulators to review their guidance on vaccinations, to emphasise professional responsibilities of registrants. There will also be amendments to the government’s code of practice for CQC-regulated providers, relating to infection prevention and control and COVID-19.
What does this mean for employers:
In response to the Regulations, NHS employers have been reviewing their policies on recruitment and deployment, to take account of the requirement for vaccination. The Secretary of State made it clear that this approach is encouraged.
The revocation of the Regulations does not mean that health and social care employers who consider that it is necessary to dismiss staff who are not vaccinated for health and safety reasons, cannot do so – however they will need to be mindful of the need to justify such a policy and consider whether it is proportionate. In the absence of regulations requiring vaccination for patient-facing staff, policies will need to be carefully drafted to balance effective infection control against the human rights and equalities issues which a mandatory vaccination policy might give rise to. This will be particularly important where employees reject vaccination for disability related or religious/ belief reasons.
We anticipate that most employers covered by the Regulations will discontinue any current processes relating to dismissal of unvaccinated employees. Employers may also need to consider ancillary grievances raised by unvaccinated staff although our view is these can now be dealt with summarily.
It is still possible to insist on vaccination for new staff provided there is justification for it (we suggest a health and safety risk assessment as a minimum). Covid-19 vaccinations would then become similar to other health clearances and dealt with in the same way.