Healthcare workers – can you be forced to be vaccinated against COVID-19 ready for the 1 April 2022 deadline?

On 1 April 2022 new regulations are coming into force affecting health and social care staff, including NHS workers and independent services, where it will be the duty of the person registered with the CQC (i.e. individual, partnership or organisation) to ensure that anyone who they engage or employ to provide direct, face to face, CQC regulated activity has provided evidence that they are fully vaccinated or medically exempt. Please refer to current Government Guidance for further information.

Similar regulations have been in force for care home staff since 11 November 2021, however this has now been extended to all health and social care workers.

If you work in health and social care, you will need to be fully vaccinated or provide a formal medical exemption by 31 March 2022 if you meet the following requirements:

1. You work in a CQC regulated setting in England;
2. Your role involves direct face-to-face contact with patients/service users; and
3. You provide CQC-regulated activity on behalf of a registered person.

If you are unvaccinated, you will need to have had your first vaccine by 3 February 2022 to be fully vaccinated in time for the regulations to come into force on 1 April 2022.

While there is a call in the media to delay the regulations to prevent staff shortages, at present they remain due to come into force on 1 April 2022. It is important to monitor any changes to guidance.

Please note that all staff are affected by these requirements if they meet the above criteria, including employees, self-employed, agency workers, volunteers, students etc.

Can you be forced to have the vaccine?

If you do not qualify for a formal medical exemption, you will need to be fully vaccinated to continue working in a role that meets the criteria set out above.

If you do not want to have the vaccine, you cannot be forced as this is a personal choice and ultimately your decision.

Your employer cannot simply dismiss you on 1 April 2022 if you are not fully vaccinated or medically exempt. An employer must follow a fair process, including considering redeployment into non-patient facing roles and discussing these options with you. The process should also include holding meetings with you and allow you to have a companion with you (either a colleague or Trade Union representative). This process may lead to your dismissal, and your employer may be able to demonstrate that this was for a fair reason i.e. on the grounds of a contravention of statutory restriction.

Your employer may be able to re-deploy you into a role where the vaccine is not required.

If you are dismissed and no process had been followed, you may have an unfair dismissal claim (if you have over 2 years’ service), or automatic unfair dismissal claim (no minimum service, for example if the dismissal relates to raising a grievance citing unlawful discrimination concerns, or you have raised health and safety concerns relating to the vaccine).

If you have been asked to have the vaccine, or informed that your job will be at risk if you are not vaccinated by 1 April 2022, I would recommend that you raise a formal grievance explaining your concerns and the reason you do not wish to be vaccinated. For example, due to a disability/health condition, religion, belief, or pregnancy (all of which are protected characteristics under discrimination legislation). You may also wish to remind them of their obligation to consider redeployment options. The employer should then follow a full grievance process including providing a right to appeal the outcome.

This will trigger the employer’s grievance procedure and they will then need to deal with this in accordance with their internal grievance process, or the ACAS Code of Practice.

Any questions?

If you wish to discuss the above or have any specific questions regarding your workforce, please do not hesitate to contact one of our experienced Employment Lawyers on 01202 525333 for further advice.