The Ward Round: The legal headaches of mandatory vaccination

With almost two weeks to go before all patient-facing staff must have their first covid vaccination or face dismissal, the pressure is ramping up within providers. Chief executives from around the country have spoken to HSJ about the huge logistical piece of work they are undertaking, at a time when staff sickness rates are still high and beds full.

The challenges are complex; human resources teams and trust leaders must rapidly identify which staff are unvaccinated, approach them sensitively, work to persuade them, potentially redeploy them, and if that fails, start the dismissal process. Something that will be incredibly painful for all involved.

This complexity has been added to with reports the two national systems responsible for recording a person’s covid vaccination status (NIMS and NIVS) are not providing accurate or up-to-date information, suggesting staff have not been vaccinated, when in fact they have. I’ve spoken to multiple trusts who are cross-referencing the data on the national systems with their own records, to try and get the most accurate picture possible.

Despite the publication of phase two guidance from NHS England last week, healthcare leaders are still getting their heads round all the in-scope categories of staff and the various exemptions.

Approaching dismissal

Lee Jefcott, partner at Brabners LLP, has already been advising employers affected by similar requirements that were imposed on care homes.

“NHS employers will now have an uphill task in planning and putting systems in place to firstly identify which roles are affected,” Mr Jefcott said. He clarified the roles affected “non-clinical ancillary roles”, such as receptionists, porters, wards clerks and cleaners.

“Volunteers, locums, bank and agency workers are also in scope,” he stressed. “The first task will be to audit which roles are in scope and which are not.”

Mr Jefcott said trusts had already started expressing concerns about exposure to legal claims as a result of the government mandate.

He added: “Apart from establishing a fair reason, employers facing unfair dismissal claims would also need to demonstrate to the tribunal that they acted ‘reasonably’ in terminating employment for that reason and this engages things like, did they fully explore any redeployment, did they explain things properly to the employee, and did they follow a reasonable dismissal process.”

“The NHS termination of employment procedures in place do not cater for this situation so trusts will need to devise and follow their own processes,” he added.

“There is also the potential for discrimination claims,” Mr Jefcott warned. “The guidance makes it clear that the usual provisions of the Equality Act 2010 apply, and employers should therefore consider the effect of their procedures on those with protected characteristics.”

The amount of work employers must do over the coming weeks is huge, but for some the stress and uncertainty could continue for many months ahead.

Five tests

What could be done to mitigate this risk? Billy Palmer, senior fellow at the Nuffield Trust, described “five tests” the think tank believes the Department of Health and Social Care and its arm’s-length bodies must demonstrate as part of ensuring an effective implementation of the policy.

They include in short: a clear grasp of the number of unvaccinated staff, a comprehensive understanding of why staff have not taken up the vaccine, a targeted communications strategy, an understanding of the effect on retention and morale, a plan for filling vacant posts and a plan to address the legal, regulatory and financial implications.

Mr Palmer argues the government’s impact assessment, published in December, does not suggest there is a “comprehensive understanding” of why staff haven’t taken up the vaccines.

The impact assessment worked on an estimate that there could be around 4.9 per cent unvaccinated staff - around 70,000 employees in total.

The care sector

An area the NHS may be glancing furtively at is the care sector; for which regulations were passed to make vaccination mandatory over the summer.

Experimental data published by the DHSC suggests the number of care home staff employed directly fell by around 22,600 (around 4 per cent) between the regulations being passed in July and the most recent 20 December data. He said there was also an observation the deadlines for the first and second doses were associated with dips in total staffing levels.

“We sadly don’t know exactly how many left or did not join because of the policy – rather these are overall (net) staffing figures – but they hopefully give an indication of scale,” said Mr Palmer.

The true impact on care quality in the sector is yet to fully come out, but it would certainly follow that a loss in staff has also resulted in poorer care.

Over the next few days and weeks trust leaders will be considering all of the points raised above. The Ward Round understands some are going further and aiming for “parity of dismissal”, for example, not just looking at unvaccinated patient-facing staff, but all staff who are not vaccinated.

Senior sources suggest the 3 February deadline is set in stone, but then, we could have a new prime minister next week. All trusts can do is methodically work through what they must do, as fairly and compassionately as possible.

 

*Amended at 13:00 on 21 January to reflect NHS England’s FAQ document on VCOD.