The government plans to revoke its decision to make COVID-19 vaccination mandatory for healthcare workers in England after warnings that the already-stretched NHS could face serious safe shortages.
Under the current legislation, all frontline NHS and private sector healthcare workers are required to be fully vaccinated against COVID-19 by 1 April 2022, meaning all those subject to the requirement would have needed their first dose by Thursday (3 February). Any individual not fully vaccinated by the April deadline would need to be redeployed to a different role (without face-to-face contact with patients) or dismissed.
However, yesterday (31 January) Health Secretary, Sajid Javid, told MPs that ending the policy was under consultation, stating: "While vaccination remains our very best line of defence against COVID-19 I believe that it is no longer proportionate to require vaccination as a condition of deployment." and therefore "Subject to the responses and the will of this house, the government will revoke the regulations”.
Given that the Labour party have said they are likely to support the government on a vote, it seems quite likely that the formal change in approach is a formality – though for now it does remain subject to consultation and parliamentary approval.
Though the Health Secretary justified the U-turn as a response to a dramatic change in the virus, the government has been under pressure from some within the health service to scrap the mandate due to staffing concerns. Some 5.1% of affected staff had not received any vaccine as of 23 January 2022 – the equivalent of 77,591 people, although not all will be in frontline jobs. Whilst this 11th hour policy change may therefore be necessary, where does it leave employers in the health and social care sectors who have already responded to the soon-to-be axed legislation?
Importantly, a change in the statutory requirements will not necessarily affect any dismissals that have already taken place in these settings. An Employment Tribunal would always assess the situation that existed at the time of the dismissal and therefore, the fact that there may be a subsequent statutory change would not render a previously fair dismissal unfair. However, any employers in the healthcare sector considering appeals against dismissal or redeployment will need to take the changed requirements into account if the mandate is reversed and where employees are currently working out notice periods, employers will need to take specific advice.
Earlier this month, the first Employment Tribunal decision in what will likely be a number of cases arising out of mandatory vaccination policies was published in the case of Ms C Allette v Scarsdale Grange Nursing Home Ltd. The Tribunal found that the dismissal of Ms Allette (who was employed by the Home as a frontline care assistant) on 1 February 2021 (long before a statutory requirement for vaccination for those in roles such as Ms Allette’s came into force) was fair. The Tribunal concluded that, though there was no contractual right to require the vaccination, nor any clear consequences for refusing it in the disciplinary policy, the Home had a reasonable legitimate basis for requiring staff to be vaccinated, not least for the protection of staff and residents but also for the fact that if staff failed to do so the employer would be left open to liabilities due to the requirements of their insurers.
Evidently then, where an employer can show it has a legitimate basis for introducing a mandatory vaccination policy and implements it with appropriate flexibility and communication with staff, dismissals arising from the policy (whether or not it is required by statute) can be made fairly. This is perhaps where the government now want to end up: allowing employers to determine what their requirements should be, rather than them being state imposed. Javid made clear last night that whilst the statutory approach may be changing, he was still urging all NHS and healthcare employers do all they can to ensure that their workforce are vaccinated.
Our Employment Team has advised a number of businesses with vaccination policies, and will continue to do so. If you are a healthcare employer concerned about this recent development or indeed an employer who has queries about whether a vaccination policy may be right for your business, our specialist team of Employment lawyers would be happy to assist you further. Please email firstname.lastname@example.org or call us on 01603 281153.