Mandatory vaccination U-turn: what you need to know

The Government has announced plans to revoke the legislation making mandatory vaccination a condition of deployment in care homes, the wider social care sector, and the NHS.

The decision has clearly already been made but will be subject to a two-week consultation. Sajid Javid said that, “The Government have made a decision on this matter, which I hope I was very clear about in my statement, but for statutory reasons there needs to be a consultation”.

Care homes – key points

• Despite the announcement, the mandatory vaccination regulations are currently still in force, and you are required to comply with them.
• If the regulations are revoked, it will not affect the fairness of any earlier dismissals when the regulations were in force.
• If you have significant workforce shortages, we suggest writing to the CQC lead in your region to request clarification on whether they will agree not to take enforcement action if you employ or engage unvaccinated staff in order to meet your regulatory staffing obligations.
• If you have recently dismissed unvaccinated staff, get back in touch to see whether they would be willing to re-join the workforce when the regulations are revoked. It is estimated that 40,000 staff were dismissed from the care home sector due to mandatory vaccination rules so this could be a way of trying to bring some back.

Other CQC regulated providers – key points

• The regulations have not yet been revoked so you will need to decide whether to continue with your information and consultation process with staff, or to pause it pending a final decision by the Government.
• We are reaching the deadline for staff to get their first vaccine to be fully vaccinated in time for 1 April, but you should consider how best to approach this with staff who haven’t had their first dose yet. If they can be encouraged to continue with vaccination that is to be welcomed, but if they were reluctant to be vaccination it may be better to hold fire for now.
• You should avoid giving notice of dismissal due to the uncertainty over whether the regulations will come into force. You will not be able to rely on “statutory restriction” as the reason for dismissal if the regulations are revoked.
• If you have already given notice, you should seek to withdraw that pending the outcome of the consultation.

Making vaccination a condition of deployment

New staff

It will still be possible to introduce a requirement for new staff to be vaccinated; however, careful consideration, and most likely exceptions, should be made where the reason for not being vaccinated relates to a protected characteristic under the Equality Act 2010.

Existing staff

Given the significant recruitment and retention challenges in the sector, it is likely that many providers will not seek to impose mandatory vaccination when the regulations are revoked. However, if you want to do so, careful consideration of the legal issues is required.

Introducing a vaccination requirement would be more complex from a legal perspective if the regulations are revoked. You would need to rely on the potentially fair reason of “Some Other Substantial Reason” and prove that dismissal is reasonable and proportionate. An Employment Tribunal has already found such a dismissal to be fair in the first case on the issue; however, that was at a time of significantly increased risk from COVID-19. It is uncertain what view an Employment Tribunal would take now, with the reduced risks posed by the Omicron variant.

Consideration would also need to be given to discrimination risk where an employee refuses to be vaccinated due to a protected characteristic.

If there is pressure from clients or their relatives to only receive care and support from vaccinated staff, this third-party pressure may provide a fair reason for dismissal. Legal advice should be taken.