The proposed requirement of mandatory vaccinations for health and social care staff will be revoked on 15 March 2022. If you have been affected by this issue, please contact our employment advisers.
On the 6 January 2022, new regulations were made which require all workers in the wider health and social care sector who have face-to-face contact with patients to be vaccinated.
The new regulations will come into force in England on 1 April 2022.
Who does it apply to
Health and care workers in all health and care settings (both NHS and private) must be vaccinated if their roles involve direct face to face contact with patients.
This includes those working in nursing, personal care, and in most forms of health care including the provision of medical treatment, surgery, diagnostic services, ambulance services, midwifery and dentistry, among others (ie. CQC regulated activities). The requirements will also apply to agency workers, volunteers, trainees or individuals contracted to another provider.
The requirement will not apply to workers who have no direct face to face contact with patients, those who are under 18 years of age, those who fall within a clinical exemption, or where the activity is part of a shared live agreement.
Defining patient-facing roles
The regulations state that the term 'face to face' should be given its ordinary meaning.
Our understanding is that all workers who will or may have direct face to face contact with patients/service users in order to carry out their duties will be subject to the mandatory vaccination requirement (unless exempt).
Those who do not interact with patients at all for the purpose of their role, but may pass patients in a corridor in their place of work, should not be required to have the vaccine. The regulations are open to interpretation on this point, but this is the BMA’s interpretation. There is scope for organisations to take different approaches depending on their individual requirements
If your role fundamentally requires face to face contact with patients and you are not willing to be vaccinated, then you may need to consider a new career.
Dealing with vaccine hesitant employees
As an employer, you should talk to your staff (individually) about the reasons they are hesitant and explain the implications if they do not get vaccinated.
The partners in the practice should discuss whether/how unvaccinated individuals could be redeployed to non-patient-facing roles and/or if their contracts are terminated.
Our guides set out the steps you can take when discussing the implications of the new regulations with your employees and partners.
Service provision implications
If the workforce reduces, you may need to commence recruitment to replace terminated staff.
Where service provision is impacted, practices are required to notify their CCG and CQC. All CCGs have local reporting/escalation processes in place when GP practices are unable to deliver their contracted services and need to trigger business continuity plans. The information will also be collated nationally. It will not be published, as this is commercially sensitive for the practices involved.
Practices should notify their patients of any changes to service provision in normal ways.
There could also be implications for those staff who are vaccinated if the composition of the practice workforce changes (i.e. they may do less non-patient-facing work and more patient-facing work within their existing working patterns – but this will be subject to discussion and agreement).
Our employer advisory service for GP partners, practice managers and medical managers can support you deal with such changes in your practice.
Redeployment and dismissal
If you are unvaccinated (and are not exempt) and your role can be done without face to face patient contact, then you can continue without change.
If not, you cannot continue in your role without being vaccinated and must be redeployed or dismissed.
Where possible, employers should make every effort to redeploy staff who do not have the vaccination into roles where vaccination is not required. However, there is no legal requirement to redeploy staff into alternative roles. In some cases, we anticipate that this may not be possible or may not be acceptable to the doctor or the employer.
Employers and unvaccinated employees should discuss their roles; whether they are able to and wish to be redeployed (and what this means for the role and contract) or whether they should be terminated.
For partners, the partnership should discuss the roles and responsibilities of any unvaccinated partner – if they are able to amend their role, and in turn what this means for the other partners and for the partnership agreement. If a partner is unable to work solely in a non-patient-facing role, then they will likely need to renegotiate the partnership agreement or indeed leave the partnership. This would need to be done through negotiation with the other partners.
In circumstances where there is more than one potentially suitable candidate for redeployment opportunities, employers and practices should use a fair selection process.
The Employment Rights Act 1996 allows employers to dismiss for a variety of potentially lawful reasons, including conduct, capability, and redundancy. The Act also permits dismissals for ‘some other substantial reason’, which captures other circumstances.
The circumstances described above could constitute a ‘substantial reason’ under the Act and provide a potentially lawful reason for dismissing. This also applies to the termination of contracts of GP partners.
However, a decision to terminate employment must be lawful in relation to the individual's contractual rights. It must also be lawful under statutory law, respecting for example the individual's right not be discriminated against or subjected to detrimental treatment for blowing the whistle. Decisions to terminate employment must therefore carefully consider the individual circumstances of the employee(s) concerned. They must not be based on an unlawful reason, such as a protected characteristic, and all staff should be treated consistently and equally in such matters.
Employees with at least 2 years continuous service can bring an unfair dismissal claim if the reason for their dismissal was unlawful, the procedure was unfair, or dismissal wasn’t reasonable in the circumstances.
Contracts and agreements
You don't need to amend any employment contracts or partnership agreements to require vaccination.
The requirement arises directly from the regulations and applies to health care workers regardless of the terms of their employment contract or partnership agreement.
‘Redeployment’ means moving from one role to a different role in the same organisation. Such a move will require a variation to the contract. These changes must be negotiated and agreed to by the employee – this includes pay and other terms unless there are protections written into the existing employment contract.
GP practices should consider the need to amend partnership agreements to allow for redeployment on an individual basis. The partnership agreement should be a true reflection of the responsibilities, so any changes should be reflected in the agreement.
Termination of contract
A termination of contract should only be required if the employee does not agree to redeployment and they cannot continue in their current role.
In a situation where the employee does not agree, typically the employer will dismiss and offer the new role at the same time (referred to as dismissal and reengagement). This leaves the employee with the option of being dismissed only or being dismissed and reengaged on new terms.