NHS England have published further guidance on the implementation of the new Regulations mandating COVID-19 vaccination in the healthcare sector (dated 14 January 2022) (please see our earlier alert). This guidance on vaccination as a condition of deployment (or “VCOD”) is aimed at all CQC registered healthcare providers (both NHS and independent).  

The guidance is robust and suggests an abbreviated termination process for in-scope staff who are not fully vaccinated (unless exempt) by 1 April 2022.  That said, there are still unanswered questions, which we address below.

Termination process guidance

The guidance details a 3-step process that employers should be engaging in now to deal with staff who decline to disclose their vaccination status, those where vaccination status cannot be ascertained, or those unwilling to participate in the COVID-19 vaccination programme (unless exempt).

• Step 1 – engage with staff representatives: Employers should engage with trade unions / staff side representatives about their proposed process, possible redeployment options and potential dismissals of staff due to the VCOD rules.
• Step 2 – formal review process: From 6 January 2022, employers should commence a formal review process with unvaccinated staff or those where vaccination status is not known. Generally, this process should encompass an initial discussion, followed by ‘supportive discussions’, and cover the consequences of remaining unvaccinated/not disclosing vaccination status, the  relevant dates and steps required, and reviewing possible adjustments to roles, restrictions to duties or redeployment opportunities.  This process should be documented in writing. 
• Step 3 – formal meeting: From 4 February 2022, employers should invite any relevant unvaccinated staff to a formal meeting notifying them that a potential outcome could be dismissal. This meeting can be held in person or virtually, and they should be given the right to be accompanied.  Every effort should be made to redeploy staff within their notice period up to and including their last date of service.  Notice should not expire before 31 March 2022 and there should be a right of appeal against dismissal.

The guidance states that the reason for these dismissals will be on the grounds of ‘illegality’ (for the unvaccinated) or ‘some other substantial reason’ (“SOSR”) (for those refusing to disclose their vaccination status).  However, in order to reduce the risks of unfair dismissal claims, employers will need to demonstrate they followed a fair process, and whilst this will apply on a case-by-case basis, the above 3-step process is a helpful guide. 

Where notice is worked and the notice period extends beyond 1 April 2022, the individual will need to be redeployed, removed from a patient-facing role or placed on leave whilst they await termination of employment. Payment in lieu of notice (“PILON”) may be applied in accordance with contract but NHS bodies will need to consider whether any approvals are necessary for this step.

Points of clarification

The guidance also confirms the following points, which are in line with what we anticipated, but it’s helpful to have stated in black and white:

• Queries about redundancy: As this is not a redundancy situation, there is no need to consult collectively (where 20 or more dismissals are contemplated) or make redundancy payments. There is no obligation to seek “suitable alternative employment” as may exist in a redundancy situation (note this is different from consideration of redeployment more generally).
• Pay protection: Extensive pay protection arrangements exist in the NHS. Where redeployment is undertaken for VCOD, staff in-scope of the Regulations are not eligible for pay protection of their basic salary or additional earnings, unless they are temporarily redeployed because they are not fully vaccinated ‘for good reason’ until shortly after 1 April 2022, or because they are pregnant (and up to 16 weeks after giving birth).
• Exempt staff: For any exempt staff, they may remain working in their current patient/service user-facing role if it is safe to do so (emphasis added). As such, employers should conduct risk assessments and consider any ways to mitigate against risk and/or provide additional support. This may result in redeployment of staff even if staff are legally exempted from VCOD.
• Patient safety: Given the reported numbers of unvaccinated staff, there is wide-spread concern about the number of dismissals that may be necessary due to the VCOD rules. Organisations should notify CQC (via email or using the on-line form) if they identify that they are unable to continue delivering activity safely.

Unanswered questions

Following previous guidance issued in December 2021, we had hoped for further clarification on certain issues and whilst the new guidance is helpful, there are still some matters not addressed:

• Vaccination status and data protection issues:

Employers will need to know the vaccination status of their staff, and the guidance states that this can be obtained in the following ways:

- Asking staff directly about their vaccination status;

- Where organisations have undertaken their own vaccination delivery programme, they can look up which staff have received vaccinations; and

- The use of central databases that record vaccination data from the national vaccination programme and integrated with staff records.

The proposal for organisations to use confidential patient information for their employment purposes creates data protection issues, particularly as this is considered ‘special category data’.  The guidance helpfully confirms the legal basis for obtaining and using vaccination status information and summarises the Control of Patient Information (“COPI”) notice that provides a legal basis for NHS England to disclose this information to health and care organisations.   

The guidance also states that employers should: (i) complete a data protection impact assessment; (ii) limit who has information about staff vaccination status; and (iii) have an appropriate Privacy Notice in place and notify staff how vaccination information will be used.  However, the guidance  does not expressly address situations where an employer has vaccinated staff previously where no notice was given to individuals at the time of vaccination about how their vaccination status data would later be used (including by their employer for VCOD purposes).  We would therefore advise caution in this area and suggest advice is sought in individual circumstances.

• Clarity over who is in-scope of the Regulations:

As we expected, there is no further information in this guidance on the vexed question of who is in scope.  The only additional advice is that employers should carry out an assessment of roles, and where the employer considers a role is out of scope of the Regulations, they should record the rationale for their decision, the context and any mitigations put in place (if applicable).  While this is sensible, it does not address how to make the decision on scope of the Regulations for marginal employees.

• Religious and philosophical beliefs

Whilst the guidance discusses the due regard that employers should have to the Equality Act 2010, it does not address the tricky issues relating to employees refusing to be vaccinated on the grounds of their religious and philosophical beliefs.  It will therefore fall to employers to consider this on a case-by-case basis.  In many instances, the individual may struggle to prove they have a ‘protected characteristic’, but if so, the battleground will be on whether the employer’s action in dismissing an individual was a proportionate response. Considerations around redeployment or adjustments to the role will be key to this issue.

Our team are regularly advising in this area. Please contact us if you would like to discuss this issue in more detail.