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Published 17 January 2022
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).
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:
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:
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.
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.
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.
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