From 11th November 2021, all care home staff in England must be fully vaccinated against COVID-19, unless they are exempt.
The Government is currently consulting on extending the scope of the vaccination requirement to the remainder of the health and social care sector, including domiciliary care and supported living services.
The Government estimates that 35,000 – 70,000 care home staff face dismissal for refusing to be vaccinated. Surprisingly, this didn’t make the Government think twice about introducing the requirement given the impact it will have on residents and care providers, who are already in the midst of a workforce crisis, with over 100,000 vacancies and poor staff retention rates which have not been helped by Brexit and the pandemic. Many care providers and recruitment agencies are reporting the most challenging recruitment environment they have ever seen.
The Government has been threatened with judicial review action against its decision to introduce mandatory vaccination, but it is undeterred. Care providers are getting to grips with implementing the new requirement but unfortunately they have not been assisted by the Department of Health and Social Care’s (DHSC) failure to publish complete and comprehensive guidance on mandatory vaccination in a timely way.
What care providers need to know:
-
Evidence of vaccination
It is essential to obtain evidence of vaccination in a compliant way and CQC will inspect against this. Vaccination status must be demonstrated through the NHS app, NHS website or an NHS COVID-19 pass letter. Nothing else will suffice and the vaccination appointment card is not valid evidence and cannot be used. Having reviewed the evidence, you must accurately record the vaccination status and the date on which it was reviewed. Vaccination status is special category data; it must be processed and stored in a manner that is compliant with data protection laws. A Data Impact Assessment should be undertaken; the ICO website has some templates that can be used for this purpose.
-
Vaccines administered outside the UK
Workers must have a vaccine that is authorised in the UK, namely: Moderna, Oxford/AstraZeneca, Pfizer/BioNTech and Janssen and problems may arise where staff have been vaccinated outside the UK. Even if their vaccine is authorised in the UK, there is currently no means of evidencing their vaccination status through any of the required methods set out above. Where the worker’s vaccine is not authorised in the UK, they will not be eligible to enter a care home from 11th November.
On 15th September, the DHSC issued exemption guidance which included a temporary exemption for care workers who have been vaccinated outside the UK. A template form has been provided for the worker to self-certify that they have been vaccinated outside the UK and they will be able to continue working in a care home for now.
It is not clear whether the exemption is intended to cover care workers who have been vaccinated outside the UK with UK-approved and non-UK-approved vaccines, and further guidance is required.
-
Exemptions
On 15th September, the DHSC finally issued exemption guidance. The content was a surprise, to say the least. Essentially, a temporary exemption process has been introduced allowing workers asserting a medical exemption to self-certify that they meet the medical exemption criteria in the guidance. A template form for staff to complete has been provided. It will only be in place until the NHS COVID Pass system is launched, following which care workers will need to apply for a formal medical exemption through that system and their asserted medical exemption will be subject to clinical review. Self-certification will expire 12 weeks after the NHS COVID Pass system is launched.
The DHSC has provided a ‘non-exhaustive’ list of medical conditions including what appears to be an exemption for needle phobia. Expressly stating that the list is non-exhaustive appears to leave broad discretion for care workers to self-certify themselves as medically exempt.
Surprisingly, there is also an exemption for pregnant workers, despite the DHSC previously stating that this would not be grounds for an exemption. This is likely to be welcomed by providers but it is frustrating that this has not been communicated sooner as many pregnant care workers have already been told that they are not exempt, based on DHSC guidance.
-
Consultation
The guidance provides little information about the requirement to collectively consult about mandatory vaccination. Section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (‘TULRCA’) requires collective consultation with a trade union or employee representatives, where there is a proposal to dismiss 20 or more employees as ‘redundant’ at one establishment within 90 days. Dismissal of a worker who is not fully vaccinated will not amount to a redundancy situation under the Employment Rights Act 1996 (‘ERA’), so redundancy will not be the reason for dismissal and there will be no entitlement to statutory redundancy pay. However, for collective consultation purposes, TULRCA defines ‘redundant’ broadly and it includes dismissal for any reason not related to the individual. In our view, this is likely to include dismissal for not meeting the statutory requirement to be vaccinated.
Failing to comply with collective consultation obligations could lead to Employment Tribunal claims and awards of 90 days’ pay per employee. Specific advice should be sought on whether these enhanced consultation obligations apply to your circumstances.
-
Fair reason for dismissal
The DHSC guidance states that a potentially fair reason for dismissal for refusing to be vaccinated could be:
- That the employee cannot continue to work in their position without the employer contravening a duty or restriction imposed by or under an enactment (‘Statutory Restriction’), or
- Some other substantial reason of a kind as to justify the dismissal of an employee holding the position which the employee held (‘SOSR’).
Both are potentially fair reasons for dismissal; however, no guidance is provided on which applies in what circumstances.
Statutory restriction would only apply if you dismissed staff who are in scope for mandatory vaccination under the regulations. If you are applying the requirement to be vaccinated more broadly (e.g., to head office staff who are not required to enter the care home), you could not rely on statutory restriction and SOSR would be more appropriate. We are not aware of any providers seeking to extend the scope of the vaccination requirement in this way, but if you are you should take specialist advice on the risks.
-
Redeployment
The guidance states that redeployment should be considered as an alternative to dismissal for unvaccinated staff. This is key to a fair dismissal process. Many providers will not have any roles where there is no requirement to enter the care home and for which there is no requirement to be vaccinated. However, some will. Currently, domiciliary care and supported living services are not in scope for mandatory vaccination, so if you operate those services alongside care home services, any vacancies should be considered before dismissal.
Where there are more unvaccinated staff at risk of dismissal than there are vacancies, care is needed when deciding which staff to select for the available roles. Clear, objective and fair criteria must be used to avoid the risk of discrimination and unfair dismissal claims.
-
Timescales
It is important that you proactively manage the information and consultation process with workers because the timescales for implementation are tight, particularly when taking account of the need to give notice, which for some staff could be as much as 12 weeks. If there is insufficient time for them to work their entire notice period before 11th November, you will be faced with costly payments in lieu of notice (i.e., pay for no work).
-
Planning is key
Planning the process, and identifying potential issues in advance, will ensure it runs smoothly. We are also seeing that it is possible for some workers to overcome vaccine hesitancy, with good numbers of workers changing their decision not to be vaccinated during the consultation process. Every worker is valuable to the sector so continued consultation and support remains critical.
Want to know more?
Royds Withy King will be contributing to the CMM website if further Government guidance is published.
James Sage is an Employment Partner and Head of Health & Social Care at Royds Withy King. Email: [email protected] Twitter: @jamessage6
Which areas relating to the mandatory vaccination concern you the most? share your views on the topic.