Vaccine U-Turn for Health and Social Workers

Caragh Bailey
4 min read
Vaccine U-turn in Health Services and Social Care Sector, Explained by Employment Law Friend
The regulations that made a double vaccination against Covid a compulsory part of front line work to be employed in the care sector and NHS are being reviewed, and are widely expected to not be implemented, as reported by the BBC

These rules have been in force in the care sector since October 2021, and it is believed around 40,000 care workers left the sector in response to this, which, particularly post-Brexit, was already suffering from staff shortages.

Many in the care sector had sought care jobs in the NHS, where the rules were only due to come into force on 1 April 2022. The only reason for enforcing this rule later in the NHS was concern about staff shortages over winter, this decision was made when the more serious Delta was the main strain, and there were further concerns there could be a major flu upsurge.

Although not due to come into force until 1 April, that required the first vaccination to be received by 3 February 2022, and NHS Trusts were poised to send out letters setting out the dismissal process from when that date had passed. This will now not take place.

The implementation of the rules as they affect the NHS has been delayed, whilst a review is carried out to consider whether this is still the right policy. This review is expected to last 2-3 weeks, but whilst it is taking place, no decisions will be made regarding terminating the employment of those in the NHS.

The reasons for the change seem to be largely driven by concern over even greater staff shortages in the NHS as staff who do not want to be vaccinated choose to leave.

Many areas of the NHS are suffering from staff shortages and there are presently over 100 000 vacancies, and so further shortages particularly in areas such as midwifery were a cause of widespread concern.

The official reasons being put forward by the Government for reviewing whether this policy should be implemented focus more on the fact that the now dominant Omicron strain is generally less severe than previous Covid strains, and that the benefits from receiving the vaccination tend to wane fairly quickly.

The late nature of this change – only a couple of days before the deadline for receiving the first jab - may still cause further staff shortages, as staff who assumed they would lose their jobs may have applied and accepted other positions. In particular, those living near the borders of England may have already sought positions in Wales and Scotland, where the double vaccination requirement never applied (nor did it in Northern Ireland).

For those working in the care sector who left their employment due to this policy, whether they were dismissed or resigned in advance of it coming into force, then this change will come too late.

They will have no right to their jobs back, and if they do return to working for their original employer they will lose any continuous service rights, which can impact on various workplace rights, including the right to claim unfair dismissal until they have been employed for two years.

Similarly, although widespread terminations have not occurred in the NHS because the policy never came into being, there are some isolated cases where individuals were dismissed in readiness for this policy, and in such cases there is similarly no right to return to employment, simply because at the time the dismissal was given it was fair.

We will need to wait a few weeks to see if the Government decides not to proceed with this change, but it is assumed likely that the policy will not be implemented in the NHS, and will be reversed in relation to the care sector.

Were you unfairly dismissed as part of the vaccine U-turn?

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This content is provided free of charge for information purposes only. It does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of our company. For employment law advice please get in contact and speak to your employment law solicitors.
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