Posted by James Sage, Partner
Mandatory vaccination: What the DHSC Guidance DOESN’T tell you
The Department of Health & Social Care (DHSC) Guidance on mandatory vaccination provides some useful guidance for providers but leaves a number of key questions unanswered. We consider these below and call on the DHSC to urgently provide further guidance to support providers.
Which vaccines are valid?
The Guidance confirms that providers have a duty to check the vaccination status of workers entering a care home but makes no mention of which vaccines are valid for these purposes. The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 (the “Regulations”), provide that the vaccine must be authorised in the UK and this currently includes:
- Oxford/AstraZeneca vaccine
- Pfizer/BioNTech vaccine
- Janssen vaccine (available later this year)
Some staff may have been vaccinated outside the UK with a vaccine that is not authorised in the UK. It is therefore important that you check evidence of vaccination status as early as possible to identify who these staff are and include them in your consultation process.
It is unclear from the Guidance how you should deal with staff who have been fully vaccinated with a vaccine that is not authorised in the UK, and in particular, whether it is clinically recommended that they should also become fully vaccinated with a UK approved vaccine.
Evidence of vaccines administered overseas
For those staff who have been vaccinated outside the UK but with a vaccine that is authorised in the UK, the Guidance provides no details of how you can obtain evidence of their vaccination status. The Guidance states, “We are aware some individuals will have been vaccinated outside of the UK. We are working on a solution to this and will provide further guidance on this as soon as possible.” This guidance is required as a matter of urgency.
It is a significant concern that the Guidance provides scant detail on medical exemptions, or how they can be evidenced.
The Guidance states: “There are a range of circumstances in which an exemption may be granted which will reflect the Green Book on Immunisation against infectious disease, chapter 14a and clinical advice from the Joint Committee of Vaccination and Immunisation (JCVI).” This suggests that medical exemptions could extend beyond the circumstances contained in the Green Book, but it is unclear.
No details have been provided about how to evidence a medical exemption. The Guidance simply states, “There will be a clear process for staff to follow if they think they may have a clinical reason to be exempt. Guidance for certification is being developed and we will add a link to this guidance here as soon as it’s published.”
The delay in publishing detailed exemption guidance creates significant operational challenges for providers. It is not possible to engage in meaningful consultation with workers asserting a medical exemption until full guidance on what the exemptions are and how they can be evidenced is available. It also delays the consultation process, which is particularly problematic for workers who follow the exemption process and are found not to be medically exempt because:
- if they subsequently decide to be vaccinated – there may be insufficient time for them to be fully vaccinated before 11 November.
- if they subsequently decide not to be vaccinated – there may be insufficient time for you to conclude the consultation and dismissal process, and for them to work their notice period, before 11 November.
DHSC has promised further guidance on medical exemptions but it has still not been published. This is required as a matter of urgency.
Is collective consultation required?
The Guidance provides little information about the requirement to collectively consult about mandatory vaccination.
Section 188 of the Trade Union & Labour Relations (Consolidation) Act 1992 (“TULRCA”) requires collective consultation with a trade union or employee representatives where there is a proposal to dismiss 20 or more employees as redundant at one establishment within 90 days. Dismissal of a worker who is not fully vaccinated will not amount to a redundancy situation for unfair dismissal purposes under the Employment Rights Act 1996 (“ERA”); however, for collective consultation purposes, TULRCA defines “redundant” broadly and it includes dismissal for any reason not related to the individual. In our view, this is likely to include dismissal for not meeting the statutory requirement to be vaccinated.
Failing to comply with collective consultation obligations could lead to Employment Tribunal claims and awards of 90 days’ pay per employee. Given the significant financial risk for providers it is concerning the Guidance does not properly address the issue of collective consultation.
What is the fair reason for dismissal?
The DHSC Guidance states that a potentially fair reason for dismissal for refusing to be vaccinated could be:
- the employee cannot continue to work in their position without the employer contravening a duty or restriction imposed by or under an enactment (“Statutory Restriction”), or
- some other substantial reason of a kind as to justify the dismissal of an employee holding the position which the employee held (“SOSR”).
Both are potentially fair reasons for dismissal; however, no guidance is provided on which applies in what circumstances.
Statutory restriction would only apply if you dismiss staff who are in scope for mandatory vaccination under the Regulations. If you are applying the requirement to be vaccinated more broadly (e.g. to head office staff who are not required to enter the care home), you could not rely on statutory restriction and SOSR may be more appropriate.
The Guidance states that redeployment should be considered as an alternative to dismissal for unvaccinated staff. This is key to a fair dismissal process.
Many providers will not have any roles where there is no requirement to enter the care home and for which there is no requirement to be vaccinated. However, some will, most notably where they also operate a domiciliary care service (as the requirement to be vaccinated does not apply) and any vacancies in that service should be considered before dismissal.
Where there are more unvaccinated staff at risk of dismissal than there are vacancies, care is needed when deciding which staff to select for the available roles. Clear, objective and fair criteria must be used to avoid the risk of discrimination and unfair dismissal claims.
We can help
We have created some fixed fee services to help you implement the mandatory vaccination requirements:
- Recruitment Packs: job advert, offer letter, and employment contract clauses
- Fixed fee advice on the process and how to avoid key risk areas
- Template correspondence with staff including: consultation process, exemptions, invite to formal hearing, dismissal letter
We can also provide adhoc support with any queries you have about the new requirements.
For more information, please contact James Sage
01225 730 231 Email us
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