Important update: No compulsory COVID-19 vaccination in the wider healthcare sector

Sajid Javid said that a two-week consultation would be launched due to dramatic changes in the virus since the policy was devised last year. It was also widely believed that the NHS and other affected providers could not afford the potential huge loss of staff at a time when there are already 100,000 NHS and social care vacancies, and non-Covid related procedures face such a backlog.

Please see our specific article on the Government U-turn for both the wider health and social care sector in England, and for CQC-regulated care homes in England.

In fact, the Consultation announced by the Health Secretary ran for only one week from 9-16 February 2022. The Consultation Response was published on 1 March 2022.

Whilst the majority of those responding were members of the public (56%), 90% answered that they felt the requirement for vaccination as a condition of deployment should be revoked. Only 9% expressed opposition to revoking the requirement. However, these were far more likely to be those who provided health and social care services or representative bodies.

Along with the release of the Consultation Response, the Health and Social Care Secretary confirmed on 1 March that the legislation requiring evidence of vaccination as a condition of deployment in CQC-regulated care homes in England would be revoked on 15 March 2022 and the legislation made for the wider health and social care sector in England from 1 April, including the NHS, would be dropped entirely.

The Health Secretary had already confirmed that the Department for Health and Social Care would write immediately to all NHS trusts and contact care home providers and wider social care settings, such as domiciliary care, to make it clear that the deadline is no longer applicable and there would be no further enforcement of the legislation. However, he confirmed he would nevertheless be taking further non-statutory measures including to emphasise and encourage a professional duty for such staff to receive COVID-19 vaccinations and potentially review the hiring of non-vaccinated new recruits. At the time of writing it has simply been stated that “the government is continuing to work closely with royal colleges and professional regulators to strengthen guidance and consult on updating the code of practice on the prevention and control of infections in relation to COVID-19 requirements for CQC-registered providers of health and social care in England”. Updates to the code will be consulted on separately.

Position up to 31 January 2022

The below states the position on compulsory vaccination in the wider healthcare sector in England as it stood until 31 January 2022. These regulations are no longer due to come into force at all. Please see our specific article on the Government U-turn for both the wider health and social care sector in England, and for CQC-regulated care homes in England.

Following an announcement by the Health Secretary on 9 November 2021, “frontline” CQC-regulated health and social care staff in England, including NHS staff, will have to provide evidence that they have been fully vaccinated against COVID-19. Regulations have now been made which will come into force on 1 April 2022 for the wider health and social care sector in England, to provide those unvaccinated workers who are within scope of the changes time to get the complete course of a COVID-19 vaccine. With current guidance specifying an eight week gap between first and second doses for a two-dose vaccine, this means that those affected will have to have had their first dose by 3 February 2022.

This decision follows a consultation process which began in September 2021 and considered whether both the COVID-19 and flu jabs should be compulsory for frontline health and social care workers deployed in CQC-regulated activities, including but not limited to the NHS in England. The outcome of the Consultation was published on 9 November 2021.

On the 6 January 2022 The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) (No. 2) Regulations 2022 (SI 2022/2015) (“the amending Regulations”) were made and these will extend mandatory evidence of vaccination to workers in England in the wider health and social care sector who have face-to-face contract with service users from the 1 April 2022. The wider health and social care sector includes “any other regulated activity” outside a care home. They also make some small changes to the current vaccination regulations with respect to workers deployed in CQC-registered care homes.

Regulated activities are listed in Schedule 1 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 and include nursing and personal care (including in the home) and most forms of healthcare such as maternity and midwifery services, ambulance services, diagnostic and screen procedure, medical treatment, and dentistry. Since they apply to any CQC-regulated activity, it will include private providers of these services and is therefore not just limited to those who work for the NHS in England.

Unlike the requirements for regulated care homes in England, however, it does not include those not engaged or employed by the CQC-registered organisation, or not deployed for the provision of a CQC-regulated activity. In other words, people such as hairdressers etc entering wider health and social care settings are not necessarily in scope – but see the guidance for both healthcare settings and wider adult social care settings below.

Interestingly, the TUC, Royal College of Nursing and Royal College of Midwives have all recently asked the Government to delay the introduction of mandatory vaccinations to avert a staffing crisis.

On 18 January, the Guardian reported that a document drawn up by the Department for Health and Social Care (DHSC) says that the evidence base on which MPs voted for the legislation has changed, creating a higher chance of objections and judicial reviews. This is because alongside emerging evidence of the lower risk of hospitalisation and mortality from the COVID-19 Omicron variant, it is reported that the effectiveness of two doses of the vaccine against Omicron effectively wanes after 20 weeks, and the booster jabs, which are highly effective, are not part of the amending Regulations (although this is being kept under review). The DHSC, however, has dismissed any prospect of a delay. Research by Public Health England indicates that the COVID-19 vaccination programme has directly prevented an estimated 24.1 million infections, over 261,500 hospitalisations, and 127,500 deaths.

What does this mean for healthcare settings and wider social care settings?

The amending Regulations are an extension of the existing statutory requirements for other health and care settings set out in the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (the 2014 Regulations). As expected, and similar to the position in CQC-registered care homes in England, the amending Regulations will require evidence of COVID-19 vaccines as a condition of engagement rather than mandating them as such. Flu vaccines are not included, although the Government will keep this under review following this winter and ahead of winter 2022/23. Similar to the requirements for care homes in England, booster vaccines are also not required in addition to the “complete course” of a vaccine, but the Government encourages uptake and will keep it under review for 2022/23.

“Frontline” means those who have direct face–to-face contact with service users so can include non-clinical workers such as receptionists, porters and cleaners. It includes hospitals, GP practices and care in a person’s home (with the exception of Shared Lives carers’ arrangements where the carer lives in a person’s home), dentists, clinics, community services and mental health services. It includes CQC-regulated activities whether publically or privately funded and agency workers, volunteers and trainees or those contracted to another provider. The scope of the amending Regulations is much wider than NHS employers in England.

Guidance for Healthcare settings

The NHS has prepared two sets of guidance, in consultation with the DHSC, on Vaccination as a Condition of Deployment (VOCD) for Healthcare Workers in England:

• Phase 1: Planning and preparation. This is stated to be aimed at NHS Trusts and Integrated Care Systems and suggests that other organisations may wish to take their own advice;
• Phase 2: VCOD implementation. This suggests that the guidance and principles can be applied more generally including to the independent sector. However, independent providers should take a careful approach and remember that this is the NHS’ interpretation of the amending Regulations.

The Phase 2 guidance sets out a section on the lawful processing of vaccination information, which is “special category” Personal Data, and reminds regulated activity providers to complete a Data Protection Impact Assessment and have an Appropriate Policy Document (as required under the Data Protection Act 2018). Please get in touch with us if you would like help with the process or drafting of either of these documents.

The Phase 2 guidance also sets out that there will be no redundancy situation and therefore no dismissal or redundancy payments for staff who are not exempt and who, after individual consultation, choose not to be vaccinated and are dismissed as a result. Trade union engagement and collaboration is actively encouraged, but the guidance states that no collective consultation is required for proposed dismissals of 20 or more employees. However, this is a complex scenario on which you should take advice, because collective consultation can apply even where there is no redundancy situation and there are certain legal nuances in this scenario.

Because there is no redundancy situation, there is no requirement to look for “suitable alternative employment”. However, exploring redeployment opportunities is strongly encouraged where possible, including right up until the end of any notice period (which must not expire before 31 March 2022). The guidance also suggests that there will be no pay protection either for basic salary or additional payments for those redeployed into positions at a lower grade/band (unless they are temporarily redeployed, e.g. a pregnant employee who is allowed 16 weeks from the birth of her child to be vaccinated).

In all cases a fair and reasonable dismissal process should be followed, which is set out in the guidance, and any particular issues under the Equality Act 2010 taken into account.

Guidance for wider adult social care settings

The DHSC had produced Guidance for CQC-regulated activities in wider adult social care settings in England. This mainly applies to CQC-regulated activities which are provided in people’s own homes, i.e. home (domiciliary) care, supported living and extra care housing services. It does not apply to residential care settings or healthcare settings.

The guidance for evidencing vaccination or other status is essentially the same as for those deployed or working in registered care homes in England (see our article on this) but please read the above guidance for wider adult social care settings.

Employment related issues

In addition to the important factors outlined above in respect of redundancy, consultation and lack of dismissal payments, there are other Employment law issues to be aware of. It is not yet clear whether the legislation will result in a staffing crisis in these settings. The Consultation asked managers of healthcare or social care services and organisations providing health or care services how they anticipate they would respond to unvaccinated staff who fall within the requirement to be vaccinated. Two in five (41%) said that they would cease employment of unvaccinated staff. Almost three in ten (29%) said that they would redeploy unvaccinated staff. Both options would result in a shortage of staff and the opportunities to redeploy staff are likely to be limited. Employers in these sectors will need to refer to the relevant guidance and take legal advice on the Employment law issues involved and pitfalls to be aware of. Employers in the sector will need to be extremely careful and not apply any blanket approaches.

However, in the recent case of Allette v Scarsdale Grange Nursing Home Ltd, the dismissal of a care assistant working in a nursing home who refused to be vaccinated (before the care home vaccine regulations came into force in England) was found by an Employment Tribunal (ET) to be fair. The ET also found that the interference with the employee’s “Right to Privacy” under Article 8 of the European Convention of Human Rights (ECHR) was justified in the circumstances of the information known at the time and the risk to vulnerable people. Ms Allette was fairly dismissed for failing to follow a reasonable management instruction. She later alleged discrimination on grounds of her Rastafarian beliefs, but conceded that she had not raised this at the time. The employer was entitled to conclude that her Rastafarian beliefs were not the reason for her refusal.

Recruitment

Under section 60 of the Equality Act 2010, employers are prohibited from asking a job applicant health-related questions before making a job offer unless one of a limited number of exceptions apply. When publishing job advertisements, organisations in the health and social care sector should now make applicants aware of the requirement to be vaccinated but they must also clearly state that those who are medically exempt from the requirement for vaccination are still able to apply for roles as alternative arrangements may be made. For the time being, employers should also consider whether a vacancy is one where an existing member of staff within the scope of the amending Regulations could be redeployed if they refused to be vaccinated, and whether recruitment for those vacancies should be frozen.

It would be best practice to notify prospective staff of the requirement at the start of the application process and undertake appropriate checks, during the recruitment process, to ensure the individual is eligible to work. It will only be possible for a newly appointed member of staff to start working in this sector once they have provided evidence of their vaccination status or an exemption. However, as mentioned above, this evidence may comprise only having had one dose of the vaccine, provided the individual does not continue to be employed after 10 weeks without completing the course of the vaccine. The individual will need to wait 21 days from the date of the first dose before starting work. This also applies to those moved into a regulated activity after 1 April 2022.

This article was first written on 15 November 2021 and updated on 26 January, 1 February and 1 March 2022. As the situation with regard to this new law is regularly changing, please contact one of our employment team lawyers for the latest position.