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NHSE: GPs ‘should seek own legal advice’ on unvaccinated staff

staff vaccine mandate

GP practices should ‘seek their own legal advice’ on redeploying and dismissing unvaccinated staff, NHS England has said.

Extensive NHS England guidance and FAQs published on Friday set out that from April, GPs and practice staff who remain unvaccinated against Covid could face dismissal.

It said that redeployment of unvaccinated staff should be considered, but ‘may not be feasible or practical’ for ‘many providers’.

But in a GP bulletin sent to practices yesterday, NHS England clarified that the ‘approaches to formal processes’ detailed in its guidance ‘may vary from organisation to organisation, depending on the facts and circumstances in each case’.

‘As such, it is recommended that organisations seek their own legal advice on such matters’, it added.

‘However, we encourage all registered persons (registered managers, registered providers) to read the guidance and FAQs to support you with compliance with the regulations.’

St Anne’s GP partner Russell Thorpe told Pulse it is a ‘significant issue’ that it will fall to individual practices to navigate terminating employment contracts of staff who remain unvaccinated – and any subsequent legal action for unfair dismissal.

Dr Thorpe, who is a Lancashire Coastal LMC representative, said: ‘It’s down to us to look after ourselves. They can’t say “you will not get targeted” – but if you do, “don’t come running to us” basically.

‘As usual, GP partners are caught like the meat in the middle of a sandwich, you can’t win whichever way you go.’

He added: ‘You never really know how something’s going to pan out until somebody tests it in court, which is always a bit of a lottery.

‘It’s a mess, these people are not stupid and they’re not going to go quietly into the night. I can see a class action coming.’

NHS England’s bulletin added that practices should ‘identify the potential for workforce capacity pressures’ that the mandatory vaccination requirement could cause ‘alongside existing pressures e.g. due to staff absences’.

They should identify the ‘potential impact on service provision and plan mitigating actions to ensure effective arrangements are in place to continue to deliver appropriate care to patients and service users’, it said.

It comes as the BMA has warned that enforcing mandatory Covid vaccinations will be an ‘added burden’ for GP practices amid ongoing workforce shortages.

In its latest GP Committee bulletin, the BMA said that the new requirement will ‘have implications for general practice above those felt in other branches of practice’.

It said: ‘General practices are both contractor and provider which complicates the issue. Practices typically do not have the physical space to separate unvaccinated workforce into non-clinical areas.

The bulletin added: ‘Practices are already straining with workforce shortages and enforcing this is going to be an added burden.

‘[They] will need to identify who has not received the vaccination and have discussions regarding their ongoing role.’

The BMA reiterated NHS England’s advice about seeking legal advice since they are independent employers and added that it is developing a set of FAQs that will ‘address redeployment, termination and implications for practices’.

It was last week reported that Covid pressures are forcing GPs to provide ‘urgent-only’ services in two areas, while a BMA survey revealed that almost 70% of GPs have seen staff shortages affect patient care.

What does ‘fully vaccinated’ mean?

Currently, having the first and second dose of the Covid vaccine means an individual is considered to be ‘fully vaccinated’ for the purposes of mandatory vaccination legislation.

However, NHS England primary care medical director Dr Nikki Kanani has said this is due to change to include the requirement of a booster jab.

Speaking at NHS England’s GP webinar last week, she said: ‘The current language does describe fully vaccinated as dose one and two, [but] that is being updated so fully vaccinated will become doses one, two and the booster.’

The policy will be ‘updated by the Government in the next week or so’, she added.

Dr Kanani later said that while the ‘current timescales’ require two doses by 31 March, the booster deadline would be ‘subsequent to that’.

It remains unclear, however, when this change will come into force and when the deadline for GPs to receive a booster will be.

NHS England’s guidance last week also said that employers can be given access to staff Covid vaccination status to ‘reduce burdens on organisations and staff’, with previous guidance saying GP practices would be expected to ‘keep a record of vaccinations’.  

It was announced in November that GPs will be banned from deploying unvaccinated public-facing staff from April.

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 began on 6 January.

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.

GP leaders previously expressed concern that the mandate may hit the GP practice workforce.

And 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’.

One LMC has advised practices that separate entrances and exits should be used for unvaccinated non-patient-facing staff, if needed to avoid them crossing paths with patients.


Patrufini Duffy 21 January, 2022 11:04 am

Verbatim and procedure. Protocol and blind alleys. Do as I say, not as I actually do. I think all NHS managers and DoH should come face the public and get vaccinated. Instead of sitting at home in their pyjamas.

Rogue 1 21 January, 2022 12:00 pm

All for one, and one…
Forget that your on your own mate!
Nice to know the NHS is there to support us

Paul Attwood 21 January, 2022 12:18 pm

Hmmm Scylla and Charybdis. Rock and a hard place.

Retired now so not directly involved but my staff in my single handed practice were close to me and I them. Plus good staff are hard to come by vaccinated or not. Add to that I consider NHSE to be lower than vermin. The proverbial turd under a metaphorical shoe.

So then comply with the mandate? Or be subject to unfair dismissal and the compo that follows? Legal advice certainly hopefully at zero cost. My office insurance included legal advice.

However my heart suggests keeping faith with the staff and keeping mum to NHSE. Invidious position. If asked by NHSE will reply happy to comply if you indemnify me.

Dylan Summers 22 January, 2022 11:26 am

The whole issue seems outdated now anyway. The country is moving towards zero covid restrictions and accepting endemic infection with (hopefully) progressively less fatal variants. The healthworker-vaccine mandate may have made sense once, but it looks increasingly at-odds with public policy now.