Last reviewed 17 March 2022

Since the repeal of the laws mandating vaccination for those in care homes and wider health and social care, in England on 15 March 2022, employers in care homes are faced with the difficult decision as to whether or not they should re-employ unvaccinated staff they dismissed and on what terms to do this.

In this article, we look at the HR and legal considerations for re-employing staff members who have left, both in relation to mandatory vaccine laws and more widely. Being careful about the decisions being made now will help employers in the future should any issues arise.

The key considerations in re-employing staff are as follows.

  • Do they, or should they, have continuous service?

  • What does the manner of their dismissal mean for their rights on their return?

  • Should they be treated as a new starter or as an existing member of staff?

Who might want to come back?

There are a number of reasons why employees might leave their roles. It could be because they have a new job, they are moving, they have been dismissed or the law has operated to make them move (such as in the case of TUPE, where the employment automatically transfers to the new employer).

Once they’re gone, however, it doesn’t mean they are gone for good. It may be that the new role didn’t work out, they have moved back to the area or they simply missed working for the business.

Do they, or should they, have continuous service?

Continuous service is essential for so many employment rights. It is what gets you family leave-related pay, unfair dismissal rights and redundancy payments. As such, defining it properly and getting it right is critical for employers.

What is continuous employment?

Continuous employment is a concept that comes from statute, namely the Employment Rights Act 1996 (ERA 1996). It is the term we use to describe how much unbroken time an employee has worked, either for a single employer or for another employer where, for example, a TUPE transfer has taken place, or the employee has moved within a group of companies.

It is presumed, under s.210(5) ERA, that unless shown otherwise, service is continuous.

What breaks continuous service?

To put it shortly, it is leaving the employment. It can be either by resigning, being dismissed or operation of law such as in the case of TUPE (the continuous service would, however, transfer to the transferee or new employer). Crucially, in order for it to be a “clean break”, there must be at least a complete week ending on a Saturday for the service to be broken and subsequent employment to be a fresh start (in terms of continuity). That means there must be at least a week starting on a Sunday and ending on a Saturday for the break to be clean.

The break must also be with no agreement to return, either explicit or implied, ie where an individual works on a successive fixed-term contract but there is no outright agreement this will happen.

What does the manner of the end of the employment mean for their rights on their return?

Dismissal

Where an employee is dismissed for whatever reason (other than redundancy, see below), there are no special requirements to bring them back.

Redundancy

Where an employee is dismissed as redundant but are offered re-engagement in another role or renewal in their original role, before the end of their employment under the previous contract, they will not be regarded as dismissed (ss.138(1)(a) and (b) ERA) as long as the new or continued role starts within four weeks of the end of the original role. This means that they may leave the employment for more than a week ending on a Saturday and still maintain continuity of service.

Resignation

Should an employee choose to leave, subject to a “clean break”, if they later decide they want to return, they can, but the employer is not bound to give them their old role back, or old terms, unless that was previously agreed.

Should, however, the employee rescind the resignation, either by words or actions (ie they continue to work and the employer allows it), that resignation would not break the continuous service.

Should they be treated as a new starter or as an existing member of staff?

The law requiring care home staff in England to be fully vaccinated meant that unless medically exempt, staff had to be double jabbed by 11 November 2021. Those who were not would need to be redeployed or dismissed (no one working in health and social care should have been dismissed for being unvaccinated as this rule did not come in until 1 April 2022). As a result, a significant number of employees were dismissed.

As it will now have been much more than the required break since care home staff were dismissed, even if they were placed on garden leave (except in the most unusual of cases), there is no obligation on employers to re-hire the ex-employees on the same terms, nor in the same roles.

Options

Employers have the following options in re-employing dismissed employees (where there has been a “clean break”).

  • Treat them as a new hire. Take them through the full induction (this may be necessary if this involves essential training that, had they stayed, would have become out of date). This has the benefit of refreshing their knowledge and reinforcing that they are being treated as new.

  • Make it clear there is no continuity of service but shorten the induction process to the essentials only and get them working. This will allow them to get working again much quicker, but there is the risk that they have forgotten crucial things.

  • Offer them their old role back and start them immediately. Give them the same terms but no continuity of service. There is no issue with employers doing this from a legal perspective, and it may help relieve any tensions within employee relations, but again there is the danger of skills not having been used for a while having been forgotten.

  • Offer them their old role and treat the time since they left as unpaid leave and offer continuous service. This is not recommended, as it can be legally tricky to handle as, in reality, they did leave, especially if they were removed from the payroll. It also means that this could potentially be giving them rights to redundancy pay and unfair dismissal rights should they later need to be dismissed.

Whichever route you take, it is better to treat everyone consistently, rather than offering different terms to different staff members, as this can cause resentment and potentially lead to discrimination if the reason for this can be linked to a protected characteristic.

Special cases

In the case of the NHS, the rules are slightly different. Those who have been employed by different NHS employers can use the total service for eligibility for redundancy, maternity, sick pay and annual leave, as long as there has not been more than a week ending on a Saturday between NHS or associated roles.

To re-hire or not?

You get to decide if the individual is someone you want to take back and how you want to do that (where the service is broken). It may be that there is a staff shortage, and they are welcomed with open arms, or it could be that the business was struggling and actually the individual leaving helped reduce costs. Whichever it is, you are in control (unless, in very rare cases, the re-engagement has been ordered by a court).