Government U-turns on mandatory vaccination for health and care home sectors in England

The consultation on revoking mandatory vaccinations

The announcement, which came in the early evening on Monday 31 January, was almost immediately lost in other headlines of the day concerning Downing Street and the Sue Gray report, and by the next day was almost overlooked entirely. However, it is a very significant U-turn, not just for the wider health and social care sector in England, but for CQC-regulated care homes, for which the initial regulations came into force on 11 November last year. See our two articles on both sectors here:

• Compulsory vaccinations for anyone working in care homes in England – where are we now? 
• Important update: compulsory COVID-19 vaccination in wider healthcare sector

Despite the wider health and social care sector, and particularly the NHS in England, having prepared for the legislation since the end of last year, and the relevant regulations being passed on 6 January 2022, the TUC, Royal College of Nursing and Royal College of Midwives had all asked the Government to delay the introduction of mandatory vaccinations to avert a staffing crisis.

There were indications of a potential U-turn, when, on 18 January 2022, the Guardian reported that a document drawn up by the Department for Health and Social Care (DHSC) said that the evidence base on which MPs voted for the legislation last year had changed, creating a higher chance of objections and judicial reviews. This was because alongside emerging evidence this year 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 booster jabs, which are highly effective, were not included in the legislation. At that time, however, the DHSC was dismissing any prospect of a delay.

Care home regulations

In a statement to the Commons on 31 January 2022, Sajid Javid said that a two-week consultation would be launched due to “dramatic changes” in the virus since the policy for the wider health and social care sector was devised last year. It is also widely believed that the NHS and other affected providers cannot 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.

In fact, the Consultation 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.

The Health Secretary had already confirmed on 31 January 2022 that the DHSC 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.

The wider health and social care sector in England was to include anyone who had face-to-face contact with service users in settings such as nursing and personal care, including domiciliary care as well as most forms of healthcare such as maternity and midwifery services, ambulance services, diagnostic and screen procedure, medical treatment, and dentistry. Since they were to apply to any CQC-regulated activity, it would have included private providers of these services and was therefore not just limited to those who work for the NHS in England.  The law had been intended to come from 1 April 2022, meaning that in order to prove vaccination status, a patient-facing worker in the sector would have needed to have had their first jab by 3 February 2022. On 3 February 2022, the Health Secretary made a further statement, that whilst many employers in the sector may have begun to prepare for formal meetings with unvaccinated staff, it was the Government’s clear advice that no employer in either sector should serve notice of termination to any employees in connection with the policy and regulations made. NHS England has written to healthcare employers, and the DHSC has written to the wider adult social care sector to make this clear.

The Regulations which were made to introduce the wider requirement also introduced some changes to the pre-existing requirement which has applied to CQC-regulated care homes in England since 11 November 2021. Some changes for care homes had already come into force on 7 January 2022, the day after the regulations were made, and other care home related changes were due to come into force on 1 April 2022. Ironically, the official Operational Guidance for care homes was updated as recently as 20 January 2022, just over 10 days before the announcement. The Guidance was updated again on 1 March with a short note to say that regulations revoking vaccination as a condition of deployment will come into force on 15 March 2022.

Any care homes in England that dismissed employees on or after 11 November 2021 but before 1 February 2022 for not being able to show evidence of vaccination should not worry: the removal of the requirement does not change the fact that it was the law at the time. Please see our more detailed article for further details. However, any health and wider social care employers who may have begun a process of dismissing employees, or any CQC-regulated care homes who have people still under notice of dismissal for not providing evidence of vaccination status, should pause and take advice now. We will continue to keep you updated.

As the situation with regard to the revocation of the law is regularly changing, please contact one of our employment team lawyers (link) for the latest position.