With just two months until Covid vaccines become mandatory for NHS workers in England, the debate over the Government’s controversial new legislation, known as “vaccination as a condition of deployment” (VCOD), rages on. As things currently stand, in order for a person to have received two doses of the Covid vaccine by 31^st March 2022, they will have to have had their first dose by 3^rd February. Those that are unvaccinated after this date will be warned of their impending dismissal.

The weekend saw nationwide protests against VCOD, with Dame Sarah Mullally, the Bishop of London and former Chief Nursing Officer for England, joining calls to delay the new law, citing the likely harm it will cause for the NHS workforce.

At the time of this article, the Government looks poised to delay the mandate for six months, but in all likelihood, a delay of such a short duration will just mean that NHS workers face the same dilemma in the summer months as they would otherwise face now: comply with the mandate or face dismissal.

VCOD is controversial on many levels. It is estimated that around 80,000 NHS staff (about six per cent of the workforce) are unvaccinated, so the implementation of mass dismissals will have a significant impact on staffing and service levels. With Omicron as the dominant strain, many have queried the sense in imposing a mandate which would give less than 50% protection against the strain.

As enquiries pour in from GP practices seeking advice on their position, we take a look at what the new law means for employers and staff.

A potentially fair reason to dismiss. If VCOD goes ahead as planned, then not having had two jabs could be considered as ‘Some Other Substantial Reason’ (SOSR) as would the contravention of statutory duty which are both potentially fair reasons for dismissal purposes. Any employer intending to rely on this as a fair reason to dismiss will need to use a fair procedure to bring about the dismissal, if it is to be considered fair in law. This means that an employer will need to take steps to find alternative work for an affected employee and must adhere to a fair process throughout.

Short-cutting fair procedure by the employer, reduced compensation for unfairness for aggrieved staff. There are likely to be arguments over whether a fair procedure would make any difference.  Some employers are bound to say that, in the light of the mandate and the limited opportunities for redeployment, the dismissal would have happened come what may. If this argument were to be successful, it could lead to an award for unfair dismissal being substantially reduced by the application of what is known as a Polkey deduction.

No redundancy pay. NHS England has made clear that employers must not treat VCOD2 dismissals as redundancies, the consequence being that dismissed staff will not be eligible for any redundancy pay.

Redeployment. A fair process will require consideration of suitable alternative employment to avoid the dismissal. Many practices will struggle to find space in their current premises to ensure separation. Potential for redeployment and in particular, selection for alternative work is an aspect of the dismissal process where disputes are likely to arise. How will an employer dismissing several unvaccinated staff and identifying just one alternative position, chose which individual to save from dismissal and redeploy?

Legal claims. The controversy and perceived unfairness of VCOD dismissals by many, suggests that dismissed staff are unlikely to go quietly. Class actions may even follow. Although compensation for unfairness will be limited (if awarded at all), we predict claims will be issued and employers will face the unwanted repercussions of this, in terms of time and money spent and reputational impact.

Impact on staffing and recruitment. VCOD dismissals will leave significant gaps in staffing, particularly in midwifery. All dismissals will have a knock-on effect on remaining staff, and many could be forced to take on additional responsibilities and work longer hours to address the staffing crisis. The most likely outcome is that the impact will be felt by everyone in the healthcare sector, from the largest NHS trust to those providing services on behalf of the NHS, such as primary care.  Even if an employer’s own staff are all fully vaccinated, any global reduction in the workforce is likely to mean longer waiting lists for all patients, leading to more pressure on primary care and those who work in this sector, whilst patients wait for specialist care.

At a time when a high number of staff are absent on sick leave due to Covid, further pressure on NHS staff will be seen by most as unreasonably burdensome, and the impact on staff retention and recruitment could be dramatic.

New policies, pre-employment checks and contracts. If vaccination status is to be a permanent pre-condition to NHS employment, all employers will need to develop policies to reflect the new law.  Safe systems to ensure the validity of proofs of vaccination status will need to be put in place. Pre- employment checks and checks on locums and contractors will be essential.

Keeping pace with change. Unlike other preconditions to employment, what constitutes “fully vaccinated” is a moving target. It is unclear how the Government intends to deal with this, save for the fact that Ministers have recently said that the booster is being considered as an additional precondition. How will employers deal with the state of flux in their contractual documentations and policies?

Morale and support. How can employers and employees keep buoyant and continue to feel supported at this time? For many, VCOD could see long serving members of staff leave NHS service in a matter of weeks, whilst those that remain must continue to provide high levels of care in the most demanding and uncertain of environments.

Conclusion

Whilst many questions remain unanswered, our view is that, whether VCOD comes into force in two months or later this year, the time for employers to develop workforce strategies to cope with the change and to inform and consult with affected staff is now.

This blog was written by DR Solicitors who are specialist legal advisors in primary care.

Further supporting documents

The VCOD process and requirements can be found in the following documents:

• Staff immunisation policy [PLUS] has been updated to include the key information in both the NHSE VCOD 1 (dated 6 Dec 21) and VCOD 2 (dated 14 Jan 22) documents
• Letter to staff about COVID-19 vaccination as a condition of deployment [PLUS] can be used to inform practice staff of the new legal requirement to have been fully Covid vaccinated as a condition of deployment