NHS Mandatory Vaccines – Vaccination as a Condition of Deployment (VCOD) – How To Get Your Practice Ready For April 2022 – Updated February 2022

by | Feb 4, 2022 | Blog

Update 4th February 2022

In light of “dramatic changes” (greater population protection and the reduced severity of Omicron compared with Delta) since the original decision, the government is now of the view that a statutory mandatory vaccination requirement is no longer proportionate given the impact on the existing NHS staffing crisis. On 31 January 2022, the Secretary of State for Health and Social Care, Sajid Javid, announced the government’s intention to revoke both sets of regulations relating to mandatory vaccination in the health and social care sector and care homes, subject to a two-week statutory consultation and parliamentary approval. In a parliamentary debate, the Secretary of State confirmed that unvaccinated care home workers dismissed from their roles may choose to work there again, without reinstated continuity of employment.
The consultation is expected to be published shortly. NHS leaders have sent a letter to NHS employers requesting that they do not serve notice of termination on unvaccinated employees.
The question I’ve been asked though is: Can we still make mandatory vaccination a condition of employment? Can a business, particularly a CQC regulated business, decide that it wishes to have all its front facing staff to be vaccinated? 
My view is that you probably can, but it is paved with risk. Engage such a policy, and the dismissals are likely to be met with employment tribunal claims. Given this about-turn from the Government, and importantly a statutory reason for fair dismissal, there is a good chance that an employment tribunal judge says that it was not reasonable to dismiss someone due to their vaccination status. 

Article Updated 28th January 2022

The Department for Health social care announced on the 9th November 2021 that they would be introducing so called mandatory vaccines for all front line NHS workers. The Government release made the main news headlines eg BBC, Sky as well as of course from Steven on our settlement agreement site.

Shortly after the new release, all relevant people in the NHS received this letter setting out the general understanding of what the new regulations were going to do.

On the 6th December 2021, the NHS released much more comprehensive guidance and it is worth reading for any CQC Regulated Provider looking at what they are now to do with staff.

On 14 January 2022, the NHS published Vaccination as a condition of deployment (VCOD) for healthcare workers: phase 2 – VCOD implementation (healthcare workers guidance) and accompanying FAQs (following phase 1 guidance on planning and preparation, published on 6 December 2021). The Department of Health and Social Care (DHSC) published Coronavirus (COVID-19) vaccination as a condition of deployment for the delivery of CQC-regulated activities in wider adult social care settings (social care guidance) on 20 January 2022.

In short, the new legislation ensure that a CQC registered person can only employ or otherwise engage a person in respect of a CQC regulated activity, if the person provides evidence that they have been vaccinated with a complete course of an authorised vaccine against COVID- 19.

The new regulations sit alongside the mandatory vaccinations for care home staff.

The regulations will apply equally across the public (NHS) and independent health sector, and will require workers aged 18 and over, who provide regulated activities to provide evidence that they have received a complete course of a Medicines and Healthcare products Regulatory Agency (MHRA) approved COVID-19 vaccine, subject to limited exceptions, by no later than 1 April 2021.

The following points from the guidance are of note:
  • Healthcare settings include hospitals, GP practices, dentists and community services where care is delivered in a person’s home.
  • In addition to frontline healthcare workers, non-clinical workers such as receptionists, ward clerks, porters and cleaners must also be vaccinated where they carry out regulated activities. 
  • Volunteers, temporary and agency workers and independent contractors with direct patient contact are covered.
  • For existing staff, the last day for first vaccination is 3 February 2022. New joiners after 1 April 2022 must provide evidence of first dose of vaccination at least 21 days before starting work, and then evidence of full vaccination within ten weeks of first vaccination.
  • There are limited exemptions for medical reasons, participation in clinical trials and the under-18’s, with temporary exemptions for pregnant women and those who have recently tested positive for COVID-19.
  • In adult social care, vaccination status can be evidenced using the NHS COVID pass, an EU digital COVID certificate, or a Centres for Disease Control and Prevention vaccination card. In the healthcare sector, vaccination status can be established by asking staff directly, checking their own vaccination delivery programme or the national vaccination programme.
  • The guidance provides advice on the steps health and social care employers should take where workers are unwilling to be vaccinated (including consultation, possible redeployment and dismissal).

The BMA Guidance is slightly misleading, as is the NHS guides in that they say that if a person is not strictly patient facing then the new legislation does not apply. This is not quite correct, as the legislation itself does not refer to ‘patient facing’ or ‘face to face’

The legislation is linked to regulated activities. There is a list of regulated activities in the schedule to the regulations but in short we are looking at health care professionals. 

Can Staff Members Claim They Are Exempt To Avoid Dismissal Under the VCOD Regulations? 

Yes they can. However, the exemptions are very limited. 

Firstly, the individual will need to see their own GP or specialist medical clinician – they cannot sign off themselves. 

That GP or clinician then needs to assess themselves whether the patient/applicant should be exempt. And even then, they need to meet the medical exemptions: https://www.gov.uk/guidance/covid-19-medical-exemptions-proving-you-are-unable-to-get-vaccinated and the medical exemptions to refuse vaccination are limited: https://www.bma.org.uk/advice-and-support/covid-19/gp-practices/covid-19-toolkit-for-gps-and-gp-practices/covid-19-patient-vaccination-exemptions

What does your practice need to do now?

In general terms, here’s what you need to do:

  1. Review and assess which roles are likely to fall within the scope of the new regulations – i.e. which are CQC regulated activities and which aren’t.
  2. Review and update your privacy notices regarding the holding of sensitive personal data relating to health and vaccination status.
  3. Discuss vaccine hesitancy with staff and help encourage uptake of vaccinations.
  4. Meet with staff to discuss other options, such as potential for redeployment.
  5. If there are no such roles, the law will permit a fair dismissal (on notice but without any additional pay such as redundancy) as a ‘some other substantive reason (SOSR)’ dismissal.

There’s quite a bit to get right (and a things can go wrong). We’re already seeing resistance – those that have made a decision not to be jabbed aren’t likely to change their mind even if their job depends on it – and many questions will be asked by employees as to whether they are truly in scope, whether they are doing regulated activities, and whether they can be reallocated to another role.

If you’re a GP practice or other CQC provider looking for strong legal support and advice on this then get in touch. We can happily work alongside your internal or external HR advisors to work through the VCOD rules to ensure you get it right and avoid and minimise any future claims.

Speak with Steven today – contact me now.


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