Managing Covid vaccination requirements for practice staff in the absence of a mandate

In November 2021, the Government began the legal process of introducing compulsory vaccination for all frontline staff from  1 April, 2022.  This policy was withdrawn in February 2022 due to opposition from among NHS workers.  

So, where are we now?  Advice from NHS Employers is still to encourage vaccination of all staff, whether frontline or not. Some NHS employers have decided to make Covid vaccination a condition of employment for new recruits in frontline roles. With no legislation to back this up, however, it becomes a matter of individual employer policy, rather than a national mandate (which was easier to defend within an employment law context).   

What difficulties does this present?  Over the past few months, we have come across key issues and questions that we will summarise and try to answer below.  Please remember that individual circumstances will differ, and it is always advisable to take bespoke employment advice from your HR service or legal advisors if you are unsure. 

Can I legally defend a compulsory vaccination policy for new recruits? 

In theory, yes.  In practice you will need to understand people’s reasons for not complying and make adjustments for those who have a medical exemption.  You may also need to consider whether vaccination is a genuine occupational requirement (because they may have contact with vulnerable patients) or just desirable.  To support your policy, a risk assessment of roles may be useful to update regularly and have on file. 

Can you have a two-tier employment policy for the vaccinated and unvaccinated? 

Ultimately, there is likely to be a small number of staff who, for reasons such as medical exemption or personal choice, are not vaccinated.  This will result in a two-tier employment policy for the vaccinated and unvaccinated. 

Issues arising from this include how you record the vaccination status of employees, whether you record boosters, how you identify the people who are unvaccinated and, most importantly, whether you have appropriate steps in place to minimise any risks. 

Managing this comes down to having a policy of individual Covid Risk Assessment. This should identify those who are vulnerable, those who are vaccinated and unvaccinated and look at mitigating the risks for employees and patients.  

Some employing organisations, such as federations or PCNs, are facing a tricky issue where PCNs or practices are insisting that ARRS staff are vaccinated before entering their premises. How can this be managed?  

In cases such as these, there will be a multi-step process for managing the employer response to the ‘client’s’ (in other words, the practice’s or PCN’s) vaccination policy: 

1.  The employer must have clear, documented evidence from the ‘placement’ PCN or practice that categorically states that they will only allow ARRS workers who are vaccinated or possess a legitimate exemption to access their premises and have face-to-face contact with their patients.   

2. The employee must be consulted with to understand their vaccination status and reason for being unvaccinated.  If they have a valid exemption this should be provided.  If they have chosen to be unvaccinated, can they be persuaded or supported to be vaccinated? 

3. If there is no exemption and they cannot be persuaded, can the role be undertaken remotely or changed in some way to minimise the risk? 

4. Could the unvaccinated employee be redeployed to a different PCN that doesn’t hold these   restrictions? 

5. Could the unvaccinated employee be redeployed to an alternative role that does not require vaccination? 

6. If there are no options for remote working or redeployment and the PCN/practice persists with its requirement for vaccination, there may be no other alternative than a ‘some other substantial reason’ dismissal under the Employment Rights Act 1996.  Please do take professional advice and consult your insurers that provide tribunal cover (if you have it) before making such a dismissal. 

Some staff (particularly the clinically vulnerable) are worried that they may be working alongside unvaccinated colleagues and patients where the risk of transmission may be higher. What do we do? 

It is normally not permissible to disclose the vaccination status of colleagues.  An individual may disclose their own vaccination status but, as with any health information, it is not permitted for an employer to disclose this without express consent.   

Where vulnerable staff have concerns, the important steps for an employer to take are: understand their concerns, undertake a specific risk assessment with them and look to minimise any risks, as appropriate.  Occupational Health may be useful in these circumstances. 

Where staff have no intention of being vaccinated themselves but are involved in running vaccination programmes, can they be required to provide advice, or deliver and support the vaccine even though it goes against their personal views? 

In these cases, consultation with the individual members of staff is key to find out more specific details about the situation. Is the individual concerned against all vaccinations or do they have specific concerns about the Covid vaccination in particular? What is their specific role in the vaccination programme? Do they feel that they can effectively carry out their duties bearing in mind their personal views? Do you have concerns about the way in which they have performed these duties to date? Individual circumstances should be considered, and a view taken based upon these. Please do take professional advice and consult your insurers before making decisions such as dismissal. 

 Exactly what is ‘frontline’?   

This is a tricky question that practices up and down the country are wrestling with as it depends on the physical layout of the practice. Frontline has been defined as someone who may have direct or incidental contact with patients while discharging their duties or accessing their place of work.  Therefore, someone who walks along a corridor which may contain a patient would be considered patient facing. 

Can you redeploy unvaccinated staff if necessary? 

If there is a genuine occupational requirement for vaccination that cannot be met and there are opportunities for redeployment then yes, with the individuals consent this option is available as an alternative to dismissal. 

What other covid requirements are in place for NHS staff that don’t apply to the general population? 

NHS staff are still required to isolate for at least five days following a positive covid test (but not in cases of exposure to a person who has tested positive). NHS staff are also required to test twice weekly for Covid and can access tests through the Government website. 

Conclusion 

Managing Covid is likely to be an issue for years to come. It is therefore important to ensure that you have appropriate risk assessments in place; you keep your understanding of employees’ vaccination status up to date; you monitor the requirements for the testing and isolation of NHS staff (which is becoming different to the general public’s); and that policies are updated to reflect these changes. 

Liz Willett is Head of Business Partnership at  Kraft HR Consulting Ltd , which works closely with practices, federations and PCNs in the Midlands and further afield.