Last reviewed 4 March 2022
Since 11 November 2021, anyone working inside a CQC-regulated care home in England must have been fully Covid-vaccinated or exempt to continue in their role.
Similar regulations were passed on 6 January 2022 for workers within the wider health and social care sector in England (including NHS staff), stating from 1 April, any affected employee who could not provide official evidence of Covid vaccination or exemption, must be redeployed or dismissed.
What has changed?
In a statement on 31 January 2022, Sajid Javid announced that he no longer believes it proportionate to mandate vaccination through statute. This decision was based on the severe staff shortages the regulations would cause, as well as the main Covid variant in the UK no longer being Delta; Omicron has been found to halve the numbers requiring emergency care or hospital admission, with lesser symptoms and side effects.
The Health Secretary confirmed he had written to professional health regulators, to ask them to review current guidance on vaccinations (including for Covid) and to emphasise employees’ professional responsibilities in this area. He also announced plans to update the DHSC’s Code of Practice on Infection Control and Prevention, which applies to all CQC-registered care providers in England.
A public consultation was launched to seek responses over proposals to revoke the regulations making vaccination a condition of deployment (VCOD) for health and social care workers in England. The consultation opened on 9 February 2022 for one week until 16 February 2022.
What was the outcome of the consultation?
The consultation outcome was published on 1 March 2022, showing 90% of respondents supported revoking the requirement and only 9% opposing.
As such, the Government intend for regulations to revoke the vaccine requirement to come into force on 15 March 2022.
DHSC will consult separately on updating the existing Code of Practice on the Prevention and Control of Infections (this code applies to all CQC-registered health and social care providers in England). The consultation will look at strengthening its requirements in relation to Covid; the next steps on this are planned to be set out as soon as possible
How does this change impact employers?
From 15 March 2022, all members of staff are able to continue in their role regardless of their Covid vaccination status. Employers should write to their staff to update them of this.
Many employers will be happy that this puts a halt to dismissals and resignations relating to the vaccine requirement, thus safeguarding the organisation against insufficient staffing resources.
However, employers will now face new questions over the rehiring of ex-employees back into care sector positions. As well as confirming next steps for individuals who had already been subject to dismissal/redeployment processes.
What happens to staff who have been dismissed and are in their notice period?
Employers who have already completed consultation processes and served notice of dismissal may have employees currently in their notice period; this may be 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 placed on garden leave for the duration.
A care home employee may be working their notice period it they submitted a temporary self-certification exemption, but were still to provide official evidence of full vaccination or permanent medical exemption. In some circumstances, care homes gave notice of dismissal but highlighted this would be rescinded if the official evidence was given. A similar situation may apply to employees in wider health and social care settings, although this will be rare due to guidance that employers should not have taken formal action until 4 February 2022 at the earliest.
When on garden leave, employees are not expected to do any work, but remain employed by the organisation and continue to be paid throughout their notice period. This will likely be most applicable to care home staff who, since 11 November 2021, have not been allowed to enter the care home to work if they have not provided evidence of their vaccination/ exemption status.
Where this applies, employers should get in touch with affected employees and confirm that their notice of dismissal will be rescinded.
Employers who don’t rescind previous dismissal notices face the risk of unfair dismissal claims being raised against them, since, from 15 March 2022, these will no longer be in place.
What happens to staff who were redeployed to an alternate role?
As outlined above, employers should speak with affected employees to discuss their options going forward.
It is likely the redeployment was agreed on a permanent basis so if their original role is not available, there is no immediate requirement for employers to seek to change their current terms and conditions.
Equally, employers should not assume that the individual would want to return to their original role — they may be happy to remain in the redeployed position.
If their old role is available, employers can arrange a meeting to discuss whether or not the employee would like to resume it. Should the employee wish to do so, the change should be confirmed in writing, outlining its terms and conditions — eg start date, rate of pay, working hours, etc.
Should employers rehire dismissed staff?
From 15 March 2022, there is no legal requirement for health and social care employees to provide evidence of their vaccination or exemption status to continue in their role. As such, employers may wish to contact employees who left the organisation for this reason and offer the option of re-engagement.
However, there is no legal obligation for employers to rehire ex-employees, so they can choose not to do so if they wish. This will be particularly relevant where managers have already filled leavers’ positions, so there are no further job opportunities available.
If an employee is rehired, they should join the organisation as a new starter and be treated in the same way as any other new starter would.
Should rehired staff be given their original T&Cs?
If the individual’s original contract of employment was terminated more than one full week ago (which will be likely for most working in a care home), there is no entitlement to maintain their previous length of service.
Essentially, this means they would be starting again as a new employee, so would be subject to associated new starter terms and conditions. For example, those relating to enhanced contractual rates or holiday entitlement for employees with long-service.
It also means employees won’t have protection against unfair dismissal or be eligible for a statutory redundancy payment until they reach two years’ continuous service.
Employees may, understandably, be upset at the prospect of returning to a role which they had previously filled for many years, but as a new starter with no service-related benefits. However, maintaining length of service after a contract of employment has terminated, and when the employee has spent prolonged periods away from the workplace, could cause difficulties for employers.
Issues arise both from the perspective of pay and holiday accrual for the non-employed time; from the practical perspective of having to create a new PAYE record after a P45 was generated; and from a consistency perspective of treating these employees differently from any others who were rehired following a termination of employment.
Unless the Government releases new guidance and/or legislation relating to the continuous service of health and social care workers whose employment was terminated as a result of the vaccine mandate, the best option for employers will likely be to engage them as new starters.
Where organisations wish to maintain previous service, they should think carefully about how the interim period when they were not employed will be processed
Are there any plans to compensate employees who lost their job?
A Cheshire MP, Esther McVey, has campaigned for care workers who were dismissed for refusing to be vaccinated, to be compensated for losing their job. However, no announcement has yet been made by the Government for the provision of such payments to be made.
Employers may wish to implement a discretionary joining bonus for ex-employees as a means to encourage them back into their roles and recognise their previous service and expertise. However, they are under no legal obligation to do so.
Where employers do introduce a contractual bonus scheme, they should ensure this is applied consistently, to avoid any potential discrimination claims.
What would happen 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, while others could choose not to.
Regardless of how this is implemented, it is anticipated that there would 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).
While greater flexibility may be welcomed by employees and employers alike, in reality, it could cause confusion and discrepancies in the sector and/or lead to employees favouring one organisation over another. This would further hinder difficulties associated with retention and widespread staff shortages.
How can employers continue to keep the workplace safe?
Employers should continue to ensure employees follow infection prevention and control measures, such as correct use of PPE, regular hand washing and social distancing.
Employers should also review risk assessments to make sure the workplace remains as safe as possible from Covid.
Enhanced health and safety measures may, in some cases, be reasonable. These could include requiring Covid-positive staff members, or those with Covid symptoms, to stay at home and avoid contact with others, or introducing enhanced deep cleaning services.