First published 18 January, updated 26 January 2022
Fresh guidance sets out what a ‘fair and reasonable’ process looks like when letting go of GP staff who remain unvaccinated
GP practices have been reminded that dismissal of staff refusing to be vaccinated against Covid-19 needs to follow a ‘fair and reasonable’ procedure and have also been warned this is not a ‘redundancy exercise’.
There will be no redundancy entitlements, including payments, whether statutory or contractual, triggered by this process, says the NHS England guidance, Vaccination as a Condition of Deployment (VCOD) for Healthcare Workers, Phase 2, issued on 14 January 2022.
The Government announced in November 2021 that Covid-19 vaccination would be a ‘condition of deployment’ for all patient-facing staff in the health sector from April this year. 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.
NHS England has now set out the steps employers need to take to manage employment of staff who are not exempt from the jab but choose not to have it, or choose not to disclose their vaccination status.
First, practices should ‘proactively identify roles not in scope of the regulations and if possible and if it doesn’t compromise patient care and services, pause external recruitment processes to allow for internal redeployment’. Employers should also consider an individual’s reasons for declining to be vaccinated and examine options short of dismissal, where appropriate.
Meanwhile, all changes to an individual’s role/duties should be documented and expressly agreed with the individual. The impact of changes to working arrangements, banding, contractual hours, enhancements and so forth, on a staff member’s pay should be explained and followed up in writing.
However, where alternative solutions cannot be found, employees will need to be taken through a formal process to dismissal. This should be fair and reasonable to provide protection against legal claims.
The guidance also sets out that the fair reason for dismissal will be on the grounds of a contravention of statutory restriction or alternatively, ‘some other substantial reason’.
The guidance does add that GP practices should ‘seek their own legal advice’ on redeploying and dismissing unvaccinated staff since approaches to formal processes ‘may vary from organisation to organisation, depending on the facts and circumstances in each case’.
Ian Pace, principal associate at law firm Weightmans, says that while NHS guidance around mandatory vaccination is quite clear that if healthcare providers need to dismiss an employee because they choose not to be vaccinated, it will be a potentially fair reason under employment law to do so, there are still some risk areas in the dismissal process.
One is the potential for discrimination claims, whether that be on the grounds of ethnicity, or disability or a philosophical belief.
‘The guidance touched on the fact that this could be an issue, but doesn’t go into detail. As with all employment issues relating to mandatory vaccinations, we’d urge practices to seek further professional advice here to help manage the risk of a claim against their practice,’ Mr Pace advises.
GPs have also been expressing concern over what counts as a ‘patient facing role’ – one of the key elements in determining who falls within the legislation’s scope, he adds.
‘The guidance gives some really helpful examples but naturally cannot cover every situation, leaving some practices unsure if certain employees would fall under the mandatory vaccination rules. One example would be the case of a practice administrator who doesn’t hold an inherently patient-facing role, but might need to cross patient-facing areas of a practice, like a waiting room, to get to their desk.
‘These are difficult points to consider and assess, and again, we’d urge practices to seek professional advice to help ensure they’re acting in line with the law.’
Meanwhile, Mr Pace explains that ‘Section 100 claims’ are becoming a bigger potential risk too for practices. These are claims made when an employee refuses to work because they perceive a serious and imminent danger to their health and safety.
‘In the past, the textbook example would be factory workers expressing concern over the safety of a piece of equipment, but amid the pandemic we’re seeing an increasing number of claims made on the basis of workplaces not being Covid secure,’ Mr Pace says.
‘In this environment, it’s more important than ever that practices are undertaking health and safety risk assessments. GPs will have, as always, been focused on practice hygiene, but making sure a thorough assessment has been done and, crucially, documented, will not only contribute to their efforts to keep the practice as Covid-secure as possible, but also help defend against claims, should they arise.’
New guidance released by the BMA advises that the partnership should discuss the roles and responsibilities of any unvaccinated partner, including if they are able to change their role and the implications of that for the other partners and for the partnership agreement.
‘If a partner is unable to work solely in a non-patient-facing role, then they will likely need to renegotiate the partnership agreement or indeed leave the partnership. This would need to be done through negotiation with the other partners,’ it says.
The need to amend partnership agreements to allow for redeployment should be considered on an individual basis, the BMA also advises. ‘The partnership agreement should be a true reflection of the responsibilities, so any changes should be reflected in the agreement.’
For more information and fuller details, see the following guidance from NHS England:
And from the BMA:
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