Let’s set the scene, Vaccination as a Condition of Deployment (VCOD) in care homes came into force on 11 November 2021 and was in the process of being applied to health and wider social care settings on 1 April 2022. Then on 31 January 2022, only approximately two months after VCOD became mandatory in care homes, Sajid Javid, Secretary of State for Health and Social Care announced the government’s intention to revoke the regulations. A consultation was launched and on 1 March 2022, the government published its response to the consultation which identified that the vast majority of feedback received supported revocation. That same day, regulations were laid to revoke the vaccination as a condition of deployment policy and on 15 March 2022 the legislation came into force, removing the requirements already in place in care homes, as well as those due to come into force in health and wider social care settings.
Whilst the revocation of VCOD regulations has been welcomed by most, it has caused substantial challenges for a sector that was already experiencing staff shortages even before the pandemic. There has been substantial job losses within care homes required to dismiss staff in order to comply with VCOD regulations and health and wider social care settings have been required to invest resources, planning and preparing for the VCOD regulations coming into force. As a result, this short-lived legal requirement has most likely had had a long term impact on the social care sector. Care home providers may be left wondering what they are to do now, in particular regarding staff who were dismissed or resigned. Guidance has not been forthcoming and it does appear that providers and staff will have to determine next steps for themselves. This article aims to help providers navigate those next steps.
Dismissal of unvaccinated staff
In a previous article I highlighted the reasons why the Government decided to revoke the VCOD policy, the main reason put forward that as a result of the Omicron variant it was no longer proportionate to require vaccination as a condition of deployment. However, at the time of Sajid Javid’s announcement it was suggested that the impact the VCOD regulations would have on the NHS workforce was the real reason for revocation. Regardless of the reasons, providers are now dealing with the aftermath.
Government advice to employers who dismissed unvaccinated care home workers from 11 November 2021 is simply that employers were complying with the law at the time and if their decisions to dismiss unvaccinated workers are challenged they should seek their own legal advice. Guidance from the Department of Health and Social Care (“DHSC”) mentions the possible option of re-hiring staff who have been dismissed or resigned as a result of VCOD regulations but provides no further detail, other than advising that the decision to re-hire is one for each individual employer and that the employer may want to seek independent legal advice. It may be that providers want to approach former employees or have been approached by former employees. NHS Guidance suggests that employers could “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”.
Stance on vaccination
Despite the revocation, the government’s view remains that the vaccination remains the best defence against COVID-19 and health and social care staff have a professional responsibility to get vaccinated. This expectation has now been reflected in statements made by professional regulators and will be underlined in government guidance. In addition, there will be a consultation on strengthening COVID-19 requirements within the Code of Practice on the prevention and control of infections, which applies to all Care Quality Commission (CQC) registered health and social care providers in England. As a result, employers are urged to continue to provide encouragement and support to staff for vaccine uptake.
It appears that VCOD is unlikely to return, but we have been warned not to rule out its return should a new, more concerning variant of the COVID-19 virus emerge. Likewise, employers do not necessarily need to rule out introducing their own mandatory vaccination policies. Some providers had chosen to introduce their own mandatory vaccination policy before VCOD became law and there is nothing stopping providers doing the same now. However, resistance to such a policy may be greater due to the revocation of the regulations. Employers could deem COVID-19 vaccinations necessary for health and safety reasons, for certain roles (resident-facing) and, even for new staff if, for example, all existing staff are vaccinated. If considering a mandatory vaccination policy, it is beneficial to start with undertaking a health and safety risk assessment. The policy would need to be carefully drafted to balance infection prevention and control against human rights and equalities considerations.
Vaccinations aside, strong infection prevention and control measures including PPE and testing, remain in place for health and social care settings. We are reminded in the government’s response to the consultation of the provision of over £900 million funding to support the adult social care sector through the winter period which included £462.5m for workforce recruitment and retention, £388.3m through the Infection Control and Testing Fund and £60m through the Omicron Support Fund.
Some will say that the revocation came too late and the damage the regulations caused to a sector that was already struggling to cope with a staffing crisis, will take a long time to repair. The exact figures of those who left the care sector due to VCOD is unknown, but reports are of just under 20,000. Whilst there is the option of care homes inviting unvaccinated staff back, how far will that initiative go when those staff would have by now sought alternative employment.
There is also the financial damage caused to individual staff who were dismissed. When the VCOD policy was initially proposed in 2021, in particular when a judicial review was launched, the sector questioned whether compensation would be offered to employees who were dismissed or resigned should the policy be revoked. The DHSC guidance makes it clear that the government will not be offering compensation.
Whilst the aim of VCOD was to protect service users, has the damage done by VCOD negated that aim? Yes, there are more staff vaccinated as a result, but there are also now a lot less staff.