First published 14 December 2021 and updated 18 January
As Covid-19 jabs have become compulsory for frontline healthcare staff, employment solicitor Ffion Jenkins outlines best practice for dealing with the vaccination status of your practice employees
The Government has confirmed that all frontline health workers will be required to be fully vaccinated against Covid-19. The ‘grace period’ for NHS workers will end on 1 April 2022 and NHS staff will be expected to be fully vaccinated by this date.
Latest published data shows, however, that over 103,000 NHS workers have not been reported as fully vaccinated. With the winter months here and an increase in Covid-19 cases alongside seasonal illnesses such as flu, the government is not inclined to force the issue of vaccination status until Spring 2022.
Spring 2022 will come around quickly. So, what does this mean for your practice employees? How should you successfully navigate an employee’s vaccination status?
Latest guidance from NHS England says staff can be directly asked about their vaccination status. Do explain to staff members that the updated legislation requires them to provide proof of their vaccination status, and if they are unable to provide this you will undoubtably draw inference as to their position.
Once you have established which employees are vaccinated it will be important to obtain the necessary records or evidence to support this. Latest guidance has set out that clinical information relating to an employee’s Covid-19 vaccination status (that would otherwise be confidential) can be directly accessed by designated practice staff from the NHS England National Immunisation System. Consent from staff to gain this information is NOT required, since a legal basis has been established that such information is needed for ‘Covid-19 purposes.’
Alternatively, you can request that staff send you their vaccination passports or other such proof of their status. You should store this information is safely in line with government regulations and held in accordance with the Data Protection Act 1998 (see also panel below).
Out of the employees who remain unvaccinated, the following are exempt from being fully vaccinated:
Start by having open and transparent conversations with them about this requirement, explaining that if they have a reason that falls under the listed exemptions you encourage them to let you know. You will need to explain that while you cannot force them to get the vaccine, their failure to do so may have wider implications on their ability to secure and maintain employment in healthcare.
If a member of staff does not meet the above criteria but is refusing to get the vaccine for any other reason, you will need to consider the safety of your staff, conduct various risk assessments and re-evaluate their working relationship with you.
You may also have to think about alternative employment, redeployment, suspension or even terminating their employment. Whatever outcome you choose, please remember that employees’ employment rights will remain in place. For example, their entitlement to a fair procedure, appeals to any dismissal, notice pay and so forth.
I suggest that you explain to them the consequences of their actions, and that this is a decision that has been taken by the government and enforced by relevant regulatory bodies. Bear in mind that if a member of staff changes their mind and wishes to get vaccinated, they will still need to be double dosed by 1 April 2022. This means they should get their first Covid jab by 3 February 2022, so they can receive their second dose in time for the deadline.
Therefore, it is in the best interests for all parties to start discussing the issue now and make informed decisions on how to proceed. It would be best to retain a written record of these discussions.
If you must take the most extreme action, by dismissing your employee, it may be appropriate to dismiss them for ‘capability reasons’ or for some other ‘substantial reason’. These are the categories for fair dismissal that vaccine refusal would likely fall under. Any letter/documents should explain the reason for dismissal. After the consultation period has ended you should serve the relevant employee with their entitled notice period and confirm whether they are entitled to any other benefits or payments upon termination. You should offer the individual an opportunity to appeal the decision – with all parties bearing in mind, however, that the outcome will not likely change unless the decision not to have the vaccine changes.
Also remember, it’s not likely to be fair to dismiss someone for vaccination reasons until the requirement to have it has come into force in April 2022.
Clearly, there are some difficult conversations to be had. However, if you remain open and transparent, make yourself available to take questions from staff, and make sure that a refusal to get vaccinated is a deliberate choice rather than due to an underlying condition, you are placing yourself in the best position, from a legal point of view.
Ffion Jenkins is a solicitor at Rubric Law.
6 January 2022 – start of 12-week grace period between the regulations being made and coming into force. This time should be uses to prepare for the new requirements by communicating and engaging with staff in a supportive way.
3 February 2022 – the last date for workers to get their first dose, unless they are exempt, so they can be fully vaccinated (with two doses) by 1 April. Eight weeks are required between the first and second dose.
31 March 2022 – workers will need to have had their second dose by this date. Workers who believe they are exempt need to provide evidence of this, also by this date.
1 April 2022 – regulations come into force.
Source: Vaccination as a Condition of Deployment, (VCOD) for Healthcare Workers
Version 1, 14 January 2022, NHS England
Source: Vaccination as a Condition of Deployment, (VCOD) for Healthcare Workers
Version 1, 14 January 2022, NHS England
Source: NHS England guidance for employers about complying with Covid-19 vaccine regulations, issued on 6 December, 2021.
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