Legislation
Last November regulations came into force requiring all persons entering Care Quality Commission (“CQC”) registered care homes to be ‘fully vaccinated’ (currently defined as two vaccinations, subject to exemptions). Parliament has since approved additional legislation extending this requirement to the public and independent health sector and wider social care settings in respect of CQC regulated activities.
In brief:
- The amended Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 apply across the sector, requiring all workers aged 18 and over who have direct, face to face contact with service users to be fully vaccinated (subject to exemptions) no later than 1 April 2022, and to be able to demonstrate their vaccination status.
- This will include front line workers, as well as nonclinical workers (such as receptionists, clerks, porters and cleaners) who whilst not directly involved in patient care, will have face to face contact with service users.
- Compliance will be monitored and enforced by the CQC.
- These rules (currently) only apply to healthcare service provisions in England.
Action – preparation and planning will be vital
As the deadline approaches, employers across public and private healthcare settings in England (including hospitals, GP practices, dentists, community service and domiciliary care) must take action. Practically speaking, currently unvaccinated workers will need to have their first vaccination by 3 February 2022, in order to ensure they are able to receive their second dose by the 31 March 2022 deadline (the current guidance is 8 weeks between vaccinations, however this timeframe could vary).
The regulations are intended to protect service users, many of whom are vulnerable; protect workers, and help reduce Covid related absences. However, it is the employers who are tasked with implementing these new rules which may ultimately result in them being forced to reduce their headcount and capacity to deliver services, where there are already chronic staff shortages and increasing vacancies. As the deadline looms this heightened concern over service provision and resource, combined with the need to follow a fair and proper process with those who remain unvaccinated, will only serve to increase the administrative burden faced by employers in the coming weeks.
Employers should act now and:
- Create a proposed timetable running up to 1 April 2022, including the requirement for notice periods to run up the deadline (if identified as necessary).
- Continue to proactively encourage vaccinations.
- Identify potential redeployment opportunities to non-patient facing roles.
- Consider workforce reconfigurations and next steps to maintain service levels and seek to mitigate the potential impact on those workers taking the strain.
Risk
To minimise the risk of unfair dismissal claims following a dismissal where the worker refuses the vaccination, or declines to disclose their vaccination status, the employer will need to ensure that there is a fair reason for the dismissal and that a fair dismissal process has been followed. In these circumstances the ‘fair’ reason likely to be relied upon by employers is that the employee’s continued employment would contravene the new statutory restrictions, or that the circumstances give rise to “some other substantial reason” for dismissal. However, even with a fair reason, it will still be important that a fair dismissal process is followed prior to any final decision being taken.
In addition, whilst unfair dismissal claims are only available to employees with more than 2 years’ service, employers will also need to be mindful of their obligations under the Equality Act 2010 as all employees, regardless of their length of service, have the right not the be discriminated against on the grounds of a protected characteristic (such as disability or pregnancy). Compulsory vaccinations could potentially directly and/or indirectly discriminate against certain employees, so employers should therefore carefully consider each employee’s reason for refusing the vaccination and explore alternatives to dismissal prior to making any final decision as to their continued employment.
It is clear that these new regulations give rise to an array of employment law related issues encompassing compliance, communications, targeted engagement, workforce planning, redeployment, trial periods, data protection and recruitment. The employment team at Square One Law are ideally placed to support you and your business with all of these issues, as well as advising on individual cases of unvaccinated workers.
Further guidance and information is available from:
