Classification: Official

Publication approval reference: C1584

8 February 2022 Version 1

On 31 January 2022, Secretary of State for Health and Social Care announced to the House of Commons that it was no longer proportionate for NHS staff to be required to have a full course of vaccinations against COVID-19. The Government announced that there would be a consultation on the matter and a vote in the House of Commons with the intention to revoke the amendments made to the 2014 Regulations. As a result the ‘VCOD for healthcare workers: Phase 1 – Planning and preparation‘ and Phase 2: VCOD Implementation guidance previously published by NHS England and NHS Improvement is currently paused, pending outcome of the Parliamentary consultation process.

Following our letter to NHS leaders requesting that employers do not serve notice of termination of employment to staff affected by the regulations, whilst we await the outcome of the Parliamentary process and further guidance from DHSC, we offer the below FAQs to address queries received from NHS leaders since the Secretary of State’s announcement.

NHS England and NHS Improvement have always been clear that staff have a professional duty to get vaccinated and it remains our best line of defence against COVID-19 and as such, we encourage NHS employers to continue engaging with and supporting their staff to inform their decisions in order to drive vaccine confidence, protect themselves and everyone else.

1. What does this announcement mean for the Care Home Mandatory Vaccination Regulations?

Employers should continue to follow the requirements that healthcare workers and volunteers entering a care home will need to be fully vaccinated unless they are exempt under the regulations. Further guidance is subject to the consultation and Parliamentary approval process outlined by the Secretary of State for Health and Social Care on the 31st January 2022.

2. What support can we offer our staff?

To continue to support staff, employers should consider dedicated communication from senior leaders regarding the Government announcement and the process that will follow, continued access to information from clinical leads and specialist experts regarding vaccinations, wellbeing sessions/events for managers and HR colleagues and support to access national health and wellbeing tools.

3. Should we remove the requirement for vaccinations from our job adverts?

Whilst the legislation is still in place and subject to consultation and parliamentary approval, it is suggested that employers continue to include the requirement for vaccination in their job adverts for in-scope roles and can provide advice that this is under legislative review. Employers should also include wording in their job adverts that they encourage and support vaccination uptake as this remains the best line of defence against COVID19.

4. Will individuals who are in a recruitment process and completing pre-employment checks still be required to be vaccinated if their role has been deemed in-scope of the regulations?

The Secretary of State’s announcement to undertake consultation on revoking the regulations means that the requirement to have all health and social care workers in- scope of the regulations fully vaccinated by 1st April is subject to consultation and Parliamentary approval. Therefore, employers should continue to ask for vaccination status as part of their pre-employment health checks as this is still in line with current legislation and NHS Employers employment check standards. Trusts should also continue to engage with their staff to encourage and support vaccine confidence.

5. Are we still requiring staff in scope to have their first vaccination or provide evidence of a medical exemption via 119 by 3rd February?

Pending the outcome of the Parliamentary consultation process, our letter to NHS leaders requested that employers do not serve notice of dismissal to staff that will not be able to be fully vaccinated by 1st April as per the regulations. The Secretary of State confirmed in Parliament that the deadline of 3rd February would not be enforced.Therefore, whilst it is encouraged that employers continue to meet with unvaccinated staff that are in-scope of the regulations, these meetings should be about providing encouragement and support for vaccine uptake.

6. Should we continue to commence with formal processes as outlined in VCOD Phase 2 Guidance from the 4th February?

The formal actions outlined in the VCOD Phase 2 guidance should be paused pending the outcome of the Parliamentary passage on revoking the regulations. However, driving up vaccination confidence is important as the COVID19 vaccination remains the best line of defence against COVID19 to protect individuals, colleagues, patients, and communities. Trusts should continue to encourage staff to take up the offer of being fully vaccinated.

7. What do we do if we have already served notice of dismissal to staff that indicated their refusal to take the vaccine?

The VCOD Phase 2 guidance was clear in advising Trusts not to undertake formal processes (which included serving notice of dismissal) until after 3rd February. However, if a Trust has issued a notice of dismissal, it is advised that they meet with the individual to advise them of the Government’s proposal to consult on revoking the regulations and to reach mutual agreement to withdraw the notice of dismissal with immediate effect.

8. What do we do about staff that have resigned as a result of the VCOD regulations?

It is advised that employers contact individuals who may have resigned due to the requirement to be fully vaccinated to discuss the Government’s plan to consult on revoking the regulations. This should be done as soon as practicable.

If the individual is still within their notice period, discussions can take place about whether they would like to continue or withdraw their resignation or pause their notice period until the outcome of the consultation and Parliamentary process is confirmed. Managers should follow this with a formal letter to the individual confirming the conversation and agreed next steps.

If the individual’s notice period has expired and they wish to return to their former role, the employer may choose to provide the individual with reasonable support with respect to the recruitment and selection process and extend an offer to re-engage them to their former role and on the same terms and conditions of employment. The employer will need to be able to demonstrate consistency in their approach to ensure that a fair and equitable process has been given to all applicable workers.