Last reviewed 3 February 2022

The Health Secretary, Sajid Javid, threw many employers in the care sector into confusion with his announcement that the Government would be consulting on the removal of the vaccine mandate for those in health and social care.

What was going to happen?

Since 11 November 2021, anyone working inside a CQC-regulated care home in England had to be fully Covid vaccinated or exempt. Those who had self-certificated their exemption status have until 31 March 2022 to provide evidence of permanent medical exemption. From 1 April 2022, workers who have not must be redeployed or dismissed.

Similar regulations were passed on 6 January 2022 for those within the wider health and social care sector, with a 12-week grace period (from 6 January) for employees to show official evidence of vaccination or exemption status. This meant that those who are not already vaccinated had to have their first dose by 3 February 2022 to have time to become fully vaccinated. From 1 April, any affected employee who has not done so must be redeployed or dismissed.

What has changed?

On 31 January 2022, the Government confirmed its intention to launch a public consultation to seek responses over proposals to revoke the regulations making vaccination a condition of deployment for health and social care workers in England (including care home staff). This consultation has not yet begun and will last for two weeks. Depending on the outcome, a parliamentary vote will take place to decide whether the regulations should be revoked, amended or remain.

Why?

Mandating vaccination through statute is no longer believed to be proportionate due to the severe staff shortages the regulations would cause and the fact the main Covid variant in the UK has been found to halve the numbers requiring emergency care or hospital admission, with lesser symptoms and side effects.

What does this mean?

Covid vaccination may still be mandatory, but instead of being a legal requirement, it will instead be imposed by the regulatory bodies. Practically this will be similar to DBS checks — namely that employees must show evidence to meet the requirements of that role and comply with CQC (or other relevant body) rules.

What if regulatory bodies required Covid vaccination?

Different regulatory bodies (eg the CQC) could set their own vaccination requirements. This means the scope of who must show evidence of vaccination/exemption could apply differently depending on who the organisation is registered with and monitored by. Similarly, some bodies could, for example, require evidence of full vaccination plus booster doses whilst others might not.

Regardless of how this is implemented, there will be greater flexibility for existing employees and for those with reasonable grounds for refusing vaccination. This includes individuals with religious or philosophical beliefs (eg ethical veganism). This could cause confusion and discrepancies in the sector and/or lead to employees favouring one organisation over another, hindering retention rates.

What should employers do now?

Sajid Javid has said that the 3 February 2022 deadline is no longer applicable. Therefore, employers should pause any processes started in preparation for the changes and not action any dismissals (and rescind those that have taken place already), as there is no longer a trigger point to base such processes on, as the reason to dismiss has been removed.

Instead, they can tell employees about this development and be transparent and honest by saying they do not know the path the Government may take but should be clear they will do everything possible to retain all staff whilst keeping them and their patients/service users safe from Covid.

In the event the Government decides to continue with the regulations as they are, it is likely the 1 April 2022 deadline for providing official evidence will be extended. However, employers should still prepare to act quickly if need be.

Employees should also be informed that it is likely a Covid vaccine requirement will likely exist in some form. The situation will largely depend on how regulatory guidance is written which, unfortunately, is unknown at this time.

Employers can continue to encourage vaccine uptake through supportive conversations and targeted resources. Similarly, employers can still ask for official evidence of vaccination/exemption status to ensure they are compliant with existing regulations in the event they remain as they are.

What if employers go ahead with dismissal?

Employers who proceed to serve notice of dismissal (or confirm redeployment) will likely face push back from employees as well as involvement from trade unions. Any dismissals that actually take place, including those which aren’t rescinded or are given with pay in lieu of notice, will likely be unfair, as there are no reasonable grounds to continue with dismissing.

What about employees who have already been dismissed and are in their notice period?

Employers who have already served notice of dismissal will have employees currently in their notice period; this is most relevant for care home employers who have had longer to consult and act on the mandatory vaccine regulations. Such employees are likely to either be working their notice period or be on garden leave.

Employers can choose to either continue with the notice period and inform the employee this will be rescinded if evidence of vaccination or exemption is provided or if the Government confirms a change of policy. It may be necessary to extend the notice period depending on the Government’s consultation outcome and the time it takes for this to be decided. A further meeting (and re-serving of notice) may be needed if the regulations remain unchanged or are introduced in a different way.

Should care homes re-hire dismissed staff?

Regulations have not been revoked yet so care home employers should continue to follow the law in place — that nobody should enter a care home for work unless they provide official evidence of vaccination/exemption status. Employers may want to tell ex-employees that they will be happy to have them back if the regulations change but explain it would be unlawful for them to do so now.