02 February 2022
Three days before the deadline, the government has U-turned on its mandatory vaccination requirement for front-line health and social care workers in England. Reasons cited for the surprise reversal include the reduced severity of the omicron variant when compared to delta, and the success of the vaccination booster roll-out across the wider population.
The government has announced a two-week ‘consultation’ on the change, but said its mind is made up and there will be no further enforcement of its mandatory vaccination rules.
Also scrapped is the already-introduced mandatory vaccination requirement for all adult care home staff and volunteers in England (excluding those who are medically exempt or taking part in a clinical trial).
Does this mean the unvaccinated frontline healthcare workforce in England will keep their jobs?
It’s not that simple. At the same time as scrapping the legal requirement for the two-dose vaccination mandate, the government says it will ask that:
- the professional regulators operating across the health sector, ‘urgently review current guidance to registrants on vaccinations, including COVID-19 to emphasise their professional responsibilities in this area’;
- the NHS review its policies on the hiring of new staff and the deployment of existing staff, taking into account their vaccination status; and
- officials consult on updating the department’s Code of Practice, which applies to every CQC-registered provider of all health and social care in England.
Therefore, indirect regulation is to ensure all health and social care workers do their professional duty and get vaccinated.
Are two jabs still enough for the frontline workforce and volunteers in England?
The short answer is ‘probably not’, based on the medical guidance published as to the effectiveness of two jabs in stopping the spread of infection. Might we therefore see regulators and other heath sector employers pressing for three jabs?
What about the 19,300 staff who have already left the care home sector?
Can they return, or do care homes need to fear that their former employees will bring employment tribunal claims for unfair dismissal, discrimination or other remedies?
Care home employers now have case law that supports them introducing their own mandatory vaccination policy.
However, the reasonableness of healthcare sector employers’ own vaccine mandates will depend on the health situation in which it is imposed. The Employment Tribunal case supported as reasonable a mandatory vaccination policy introduced in January 2021 (albeit at short notice) after a fatal outbreak in a care home.
That was against the background of the alpha variant and a largely unvaccinated care home population. In December 2021, against the rise of omicron and an unboosted population in England, an Employment Tribunal would also likely have found such a measure to be justified. But that seems less certain now, in early February 2022, after the government policy change on mandatory vaccination. Care home sector employers who decide to keep their mandatory vaccination policies should therefore keep a close eye on the current impact of the virus as we move through the latest stages of the pandemic.
The government says care home and health sector workers who lost their jobs over the mandatory vaccination law left voluntarily, perhaps seeking to blunt the effectiveness of any claims that require an employer-driven dismissal to be proved. Employment Tribunals look at the facts more holistically, but we may be in for some fine distinctions being drawn in dismissal cases at different times over the past year. It should certainly be pause for thought on any dismissals in process.
If you are an employer and have any questions or concerns about implementing a coronavirus vaccination policy, or about employment tribunal claims from former employees, please contact Jennifer Mansoor.