GPs and practice staff who remain unvaccinated against Covid from April could face dismissal, NHS England guidance has said.
The guidance released today said that redeployment of unvaccinated staff should be considered, but ‘may not be feasible or practical’ for ‘many providers’.
It also said that employers can be given access to staff’s Covid vaccination status to ‘reduce burdens on organisations and staff’.
The Government announced in November that Covid-19 vaccination would be a ‘condition of deployment’ for all patient-facing staff in the health sector from April this year.
An FAQ document, released in a suite of new guidance by NHS England today, said: ‘If you choose not to be vaccinated, your line manager will discuss with you any reasonable possibilities for redeployment.
‘However, please be aware that redeployment opportunities will be limited, and this will not be a guaranteed option. Also, redeployment opportunities may not be on the same/similar terms and conditions you currently hold eg there may be changes to your band, pay and working arrangements.’
Guidance for employers said that organisations should ‘proactively identify roles not in scope of the regulations and if possible and if it doesn’t compromise patient care and services, pause external recruitment processes to allow for internal redeployment’.
But it added that ‘it is acknowledged that for many providers, redeployment of staff for the purposes of vaccination as a condition of deployment (VCOD) may not be feasible or practical’.
It added: ‘Employers should consider an individual’s reasons for declining to be vaccinated and examine options short of dismissal, where appropriate. However, if it’s not feasible to implement alternative solutions, staff will be taken through a formal process to dismissal.’
Any such process must be ‘fair and reasonable’ and staff must be given ‘reasonable opportunity’ to be vaccinated or provide evidence they are exempt before action is taken, it said.
Employers should work with their trade union or ‘staff side representatives’ regarding redeployment or dismissal, it added.
The guidance stressed that this ‘is not a redundancy exercise’ and that dismissal will not trigger any redundancy entitlements such as payments.
Dismissal process for staff who refuse vaccination
Organisations should follow a fair and reasonable dismissal process to provide protection against unfair dismissal claims and such a process should include the following steps:
- Inviting the individual to an initial meeting to discuss the regulations and their vaccination status which could be either in person or virtual.
- One-to-one supportive conversations, discussing concerns, providing vaccination information materials and access to specialist experts.
- Consideration of the extent to which the regulations affect the individual’s ability to carry out their job i.e. it is a legal requirement of the individual’s role.
- Consideration of any possible adjustment to the individual’s role.
- Consideration of alternative roles.
- Invitation to a meeting (either in person or virtually) warning the individual that the outcome may be dismissal if they do not evidence, they are vaccinated or exempt within specified timescales.
- A meeting (either in person or virtually) at which the individual can be accompanied by a trade union representative or work-based colleague. The Chair of the meeting should assess whether adequate consideration of alternatives, such as adjustment or redeployment, has been given and whether, in light of those matters, employment should be terminated.
- Dismissal on notice (in accordance with contractual arrangements) to terminate not before 31 March 2022.
- Providing the individual with a right of appeal against dismissal.
Source: NHS England
Meanwhile, the guidance also said that employers can now access the vaccination status of their employees themselves.
It said: ‘By getting this information from NHS England’s immunisation database individuals will not need to provide evidence of their vaccination status, making it easier for both them and their managers.’
Previous guidance had said that GP practices would be expected to ‘keep a record of vaccinations as part of their staff employment or occupational health records’ but did not go into detail about how employers should obtain vaccination status information.
The new guidance states that a ‘small number of designated members of staff’ can obtain individuals’ Covid vaccination status recorded on the ‘NHS England National Immunisation System (NIMS) database and linked to the NHS Electronic Staff Record (ESR) number’.
The guidance explained that accessing this data is lawful under data protection law because it will be ‘necessary for employment purposes’ and ‘necessary for the management of healthcare services’.
GP practices should also:
- 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 (‘fair processing’ information).
Source: NHS England
Last Thursday (6 January) was the start of the 12-week grace period to ensure unvaccinated individuals get their first dose by 3 February and can receive their second dose by the 1 April 2022 deadline.
The mandate extends to all non-clinical workers in direct contact with patients, meaning GPs will be banned from deploying unvaccinated public-facing staff.
It will be for the CQC to ensure compliance and in the worst-case scenarios, they could withdraw registration for practices with unvaccinated staff – effectively shutting them down.
Some GP leaders have expressed concern that the mandate may hit the GP practice workforce.
NHS England previously encouraged GP practices to have ‘one-to-one’ conversations with staff who have refused Covid jabs to identify ‘reasons for vaccine hesitancy’.
Meanwhile, there are ‘no plans’ for Scottish and Welsh Governments to introduce mandatory Covid and flu vaccinations for healthcare staff.
For England, flu vaccination mandates have not been ruled out for future winters.
Northern Ireland is planning a public consultation on making Covid vaccination compulsory for ‘new recruits’, but there is still no date for the consultation.