As Covid-19 jabs have become compulsory for frontline healthcare staff, employment solicitor Ffion Jenkins outlines best practice for dealing with the vaccination status of your practice employees
The Government has confirmed that all frontline health workers will be required to be fully vaccinated against Covid-19. The ‘grace period’ for NHS workers will end on 1 April 2022 and NHS staff will be expected to be fully vaccinated by this date.
Latest published data shows, however, that over 103,000 NHS workers have not been reported as fully vaccinated. With the winter months here and an increase in Covid-19 cases alongside seasonal illnesses such as flu, the government is not inclined to force the issue of vaccination status until Spring 2022.
Spring 2022 will come around quickly. So, what does this mean for your practice employees? How should you successfully navigate an employee’s vaccination status?
First, you will need to establish who is or isn’t vaccinated at your practice
Latest guidance from NHS England says staff can be directly asked about their vaccination status. Do explain to staff members that the updated legislation requires them to provide proof of their vaccination status, and if they are unable to provide this you will undoubtedly draw inference as to their position.
Once you have established which employees are vaccinated it will be important to obtain the necessary records or evidence to support this. Latest guidance has set out that clinical information relating to an employee’s Covid-19 vaccination status (that would otherwise be confidential) can be directly accessed by designated practice staff from the NHS England National Immunisation System. Consent from staff to gain this information is NOT required, since a legal basis has been established that such information is needed for ‘Covid-19 purposes.’
Alternatively, you can request that staff send you their vaccination passports or other such proof of their status. You should store this information is safely in line with government regulations and held in accordance with the Data Protection Act 1998 (see also panel below).
Out of the employees who remain unvaccinated, the following are exempt from being fully vaccinated:
- those under the age of 18
- those who are clinically exempt from Covid-19 vaccination
- those who have taken part or are currently taking part in a clinical trial for a Covid-19 vaccine
- those who do not have direct, face-to-face contact with a service user, for example, those providing care remotely, such as through triage or telephone consultations or managerial staff working in sites apart from patient areas
- is exempt due to a short-term medical condition (which is an option that some
pregnant women may choose to take). For pregnant women the exemption expires 16 weeks after birth - those providing care as part of a shared lives agreement.
You will need to find out which members of staff meet the exemption criteria
Start by having open and transparent conversations with them about this requirement, explaining that if they have a reason that falls under the listed exemptions you encourage them to let you know. You will need to explain that while you cannot force them to get the vaccine, their failure to do so may have wider implications on their ability to secure and maintain employment in healthcare.
If a member of staff does not meet the above criteria but is refusing to get the vaccine for any other reason, you will need to consider the safety of your staff, conduct various risk assessments and re-evaluate their working relationship with you.
You may also have to think about alternative employment, redeployment, suspension or even terminating their employment. Whatever outcome you choose, please remember that employees’ employment rights will remain in place. For example, their entitlement to a fair procedure, appeals to any dismissal, notice pay and so forth.
Begin consultations with the affected employee now rather than delaying until nearer Spring 2022
I suggest that you explain to them the consequences of their actions, and that this is a decision that has been taken by the government and enforced by relevant regulatory bodies. Bear in mind that if a member of staff changes their mind and wishes to get vaccinated, they will still need to be double dosed by 1 April 2022. This means they should get their first Covid jab by 3 February 2022, so they can receive their second dose in time for the deadline.
Therefore, it is in the best interests for all parties to start discussing the issue now and make informed decisions on how to proceed. It would be best to retain a written record of these discussions.
If you must take the most extreme action, by dismissing your employee, it may be appropriate to dismiss them for ‘capability reasons’ or for some other ‘substantial reason’. These are the categories for fair dismissal that vaccine refusal would likely fall under. Any letter/documents should explain the reason for dismissal. After the consultation period has ended you should serve the relevant employee with their entitled notice period and confirm whether they are entitled to any other benefits or payments upon termination. You should offer the individual an opportunity to appeal the decision – with all parties bearing in mind, however, that the outcome will not likely change unless the decision not to have the vaccine changes.
Also remember, it’s not likely to be fair to dismiss someone for vaccination reasons until the requirement to have it has come into force in April 2022.
Clearly, there are some difficult conversations to be had. However, if you remain open and transparent, make yourself available to take questions from staff, and make sure that a refusal to get vaccinated is a deliberate choice rather than due to an underlying condition, you are placing yourself in the best position, from a legal point of view.
Key points:
- Start open and honest discussions now so informed decisions can be made. Make a written record of discussions.
- Ensure someone refusing the vaccine is not exempt.
- Explore options for redeployment where a member of staff chooses not to be jabbed but is not exempt. Also consider the safety of other staff.
- Respect data protection regulations and don’t overlook an individual’s employment rights
Important dates
6 January 2022 – start of 12-week grace period between the regulations being made and coming into force. This time should be uses to prepare for the new requirements by communicating and engaging with staff in a supportive way.
3 February 2022 – the last date for workers to get their first dose, unless they are exempt, so they can be fully vaccinated (with two doses) by 1 April. Eight weeks are required between the first and second dose.
31 March 2022 – workers will need to have had their second dose by this date. Workers who believe they are exempt need to provide evidence of this, also by this date.
1 April 2022 – regulations come into force.
Source: Vaccination as a Condition of Deployment, (VCOD) for Healthcare Workers
Version 1, 14 January 2022, NHS England
When it comes to data protection GP practices should:
- Complete a data protection impact assessment describing how they plan to use staff vaccination status information, including privacy risks that might arise from this.
- Have an appropriate policy document in place describing how the processing of staff information complies with data protection law.
- Limit who has access to information about staff vaccination status, to only those that ‘need to know’ as part of their role, and ensure that those that have access to this information are aware of its confidential and sensitive nature and handle it appropriately.
- Make information available to staff describing how vaccination information is used.
Source: Vaccination as a Condition of Deployment, (VCOD) for Healthcare Workers
Version 1, 14 January 2022, NHS England
How to conduct one-to-one conversations with vaccine-hesitant staff
- Ensure the individual is aware of the regulations and advise them of the impact of the regulations on their role.
- Discuss any individual circumstances that may currently be stopping them from getting the Covid-19 vaccination with understanding and compassion.
- If the individual advises that they are medically exempt, please signpost them to obtaining evidence of clinical exemption.
- Addressing concerns and vaccine hesitancy.
- Provide details of access to expert clinical advice from clinicians locally wherever possible.
- Signpost the employee to support services (including health and wellbeing and occupational health) and Covid-19 vaccination information resources from NHS England and the Department of Health and Social Care.
- Encourage the employee to have further conversations with their own GP or trusted healthcare professional if they have any further questions around vaccination. A detailed record of informal conversations should be maintained.
Source: NHS England guidance for employers about complying with Covid-19 vaccine regulations, issued on 6 December, 2021.
