Temporary FAQs: Managing the VCOD U-turn as at 11 February

***Please note this article was up to date as at 11 February 2022. For the latest guidance on this topic, please refer to our most recent update.***

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These FAQs may have a very short shelf-life but attempt to capture some of the key issues we are discussing with clients following the consultation published on 9 February.  They are, of course, subject to further emerging guidance and information from the government and regulators.

Key links are:

• Secretary of State’s oral statement to parliament
• Government press release
• NHSEI’s request for employers to not serve notice of termination to affected employees
• Government consultation
• NHSEI’s FAQs published on 8 February 2022

Key questions we are currently discussing with clients include:

1. Can we still require new starters to be fully vaccinated?

For the time being, our view is that it may still be legitimate to continue to require new starters (particularly for “in-scope” or clinical roles) to be fully vaccinated as a condition of engagement because:

1. The legislation is still in place;
2. The Secretary of State’s statement to parliament indicated that he had “asked the NHS to review its policies on the hiring of new staff”, which may mean that similar requirements might remain in place for some new starters;
3. Health and social care employers might, in any case, take a reasonable view that new starters should be fully vaccinated to reduce health and safety risks to patients and staff, at least for clinical or “in-scope” roles.

This should be subject to nuances to address certain cases, such as:

• Internal members of staff (or long term bank staff) who apply for a new role or promotion;
• Applicants who are (or would be) exempt under the current legislation.

2. Should we be writing to staff who have been invited to formal (step 3) meetings?

Most employers had not started actually inviting staff to a formal (step 3) meeting.  Where staff have been invited to these meetings, in view of the NHSEI request not to give notice to staff, most employers are writing again to let those staff know that a formal (step 3) meeting will not now be required pending the government consultation and may not be required at all.

3. Should we pause step 2 meetings?

Although it is clearly right for employers to continue to engage with staff and encourage them to take up the vaccination, most are pausing the requirements for managers to meet with all staff and seek confirmation of their vaccination status (in line with step 2 of the NHSEI phase 2 guidance).  Locally, unions have indicated that these meetings may be very unwelcome and many employers are taking the view that feelings are running too high to have these discussions for the moment.

4. What staff support should we be thinking about?

Many of our clients are describing plans to support staff who have been distressed or exhausted by the efforts to implement VCOD in the last two months and the unexpected change of events, including:

• Sessions led by executive team members to explain the present position and take questions;
• Continuing communications, by clinical leads, to emphasise that vaccination is the best protection for staff and signposting clinics and informal discussions for the vaccine hesitant.
• Wellbeing sessions and events for managers and HR colleagues, who have borne the brunt of this initiative over the last two months.

5. Can we apologise?

Several organisations have described the tension for leaders who feel moved to offer apologies to distressed staff.  We have discussed the fact that employers may want to maintain the important point that they have not themselves had any discretion in the implementation of mandatory vaccination; and also to emphasise the fact that it is right to continue to encourage vaccination uptake as the best way of keeping service users and staff safe.  However, there may well be a value in acknowledging the upset and hurt felt by many staff and managers and using this chance to signpost support that is available. 

6. What can we do where staff have resigned?

Some staff may have resigned in the course of the last two months citing the pressure to take up vaccination.  Where this has happened, employers might want to consider offering those staff the chance to withdraw their resignation.  There is clearly no obligation to do this and this will be a balance for employers between focusing on encouraging vaccination uptake and managing safe staffing levels.  We note that NHSEI is actively encouraging employers to contact individuals who may have resigned  and to discuss retraction of their resignation or re-engagement.

7. Should we be accepting grievances?

The current confusion and apparent change of direction is prompting high volumes of complaints and grievances from staff.  These should, of course, be considered on their individual merits, but where complaints focus on the general requirements, it may be legitimate to decline to institute normal grievance processes, as the requirements have not been at the discretion of the employer.  Again, this should be taken as an opportunity to signpost support and informal conversations with managers about these concerns.

8. Will the reversal apply to staff of third party employers and contractors? Should we still be engaging with them to provide details / assurances of their staff vaccination status?

We have had a lot of questions about whether the change in direction will apply to third party employers and contractors.  Whilst this has not been made clear, it seems unlikely that the requirements will be very different and most organisations are pausing requests to third party contractors to provide assurance or evidence of vaccination status for the time being.  Most organisations are pausing their requests to third party contractors to provide evidence of vaccination and / or to amend contractual documentation.  It may be that where you have written to such contractors asking for evidence you could let them know they can pause on providing that as it may not be required.

9. How should we respond to outstanding challenge letters?

Many organisations will have adopted consistent responses to the range of challenge letters being received.  Given the change in direction, organisations may want to consider responding briefly to any such outstanding letters, by referring to the government consultation which may obviate the author’s concerns, the fact that the organisation has paused its approach to the mandatory vaccination requirements, and to invite the author to write again if they remain concerned at the conclusion of the consultation. If letters have been identified as containing requests under the Freedom of Information Act 2000 then a response on applicable points should still be provided.

10. Can we continue to hold the data we have obtained?

On the basis that the Regulations have not been revoked as yet, we consider that it would be lawful to continue to hold the data you have obtained pending the outcome of the Consultation. 

11. Once the regulations have been revoked, on what basis can we process data regarding staff’s vaccination status?

This will depend on whether there are any other obligations or expectations in relation to vaccination status placed on organisations as a result of the Consultation.  There may still be legitimate reasons for organisations to retain the vaccination status data which has been gathered to date, but much will depend on the position of the professional regulators and the outcome of the Consultation.  All organisations will need to assess whether they can justify retaining the information gathered once more clarity has been provided particularly in relation to expectations around infection prevention and control, managing risk and deployment of staff.  

12. If the regulations are revoked, what would be our remaining regulatory obligations regarding staff vaccination?

Even if and when the Mandatory Vaccination Requirement is revoked, providers will still have to comply with the pre-existing requirement in the Regulations to take appropriate steps to assess the risk of, and prevent, detect and control the spread of infections.  In doing this, providers are under a duty to have regard to the ‘Code of practice in relation to the prevention and control of health care associated infections’. DHSC has indicated that it will be consulting on strengthening the requirements in this Code in relation to COVID-19.  It remains to be seen what these strengthened requirements in the Code will look like. However, whilst the Code will not, itself, have force of law, providers will need to have regard to it in order to comply with their regulatory obligations.

13. How do we respond to staff who allege they have been coerced into having the vaccination against their wishes?

Again, complaints of this nature should be considered to some extent on their individual merits.  However, in most cases it is likely to be legitimate to decline to institute any formal complaints or grievance processes, as the requirements to be vaccinated have not been at the discretion of the employer.  Generally, we recommend that staff should be listened to sympathetically but informally and signposted towards available health and wellbeing support.

 

If you would like to discuss this topic in more detail, please contact:

• Alastair Currie
• Jodie Sinclair
• Carlton Sadler
• Carly Caton
• James Cassidy