Lawyers advise on mandatory Covid jabs

Healthcare legal experts are recommending employers in the health sector continue to recruit new staff on the basis that mandatory Covid vaccination may be required.

Hempsons solicitors say for those staff who are subject to consultation about their vaccination status –potentially unvaccinated – they recommend these meetings are paused pending the outcome of the Government consultation and proposed repeal. 

They envisage a pause until at least the middle of this month.

In a blog following Health Secretary Sajid Javid’s announcement of a reversal of Government policy to implement mandatory vaccinations throughout much of the health and social care sectors, the solicitors state that Mr Javid was explicit that he was ‘announcing that we will launch a consultation on ending Vaccination as a Condition of Deployment in health and all social care settings’.

Hempsons’ partners Martin Cheyne, Philippa Doyle, Michael Rourke and Paul Spencer, state: ‘We anticipate that this means that the new 2022 Regulations imposing mandatory vaccinations in the Care Quality Commission-regulated parts of the health and social care sectors as well as the 2021 Regulations requiring vaccination to work in/enter a care home are both subject to that consultation.

Can’t be revoked

‘Currently, the 2021 (Care Home) Regulations are and remain in place and the 2022 (new and wider VCoD) Regulations come into place on 1 April. They cannot simply be revoked by the announcement.

‘The Secretary of State has relied on the powers under sections 20(1) to (3) and (5) of the Health and Social Care Act 2008 (HSCA) to make the regulations imposing the VCoD requirements, and will rely on the same powers to repeal these requirements. These regulations concern the requirements on those carrying out regulated activities.

‘Section 162(3)(b) of the HSCA 2008 requires that for regulations to be made or altered under section 20, there must be a positive resolution of each House of Parliament. The reason for this, under HSCA 2008, is that the contravention of regulations made under section 20 can be an offence punishable by a fine. As such, Parliament has – as is quite common for such provisions – required its consent to create or abolish criminal offences.’

NHS England/Improvement has already requested: ‘This change in Government policy means we request that employers do not serve notice of termination to employees affected by the VCOD regulations.’

What now?

Hempsons partners added: ‘Issues may arise out of or related to the steps already taken to address VCoD requirements and employers may need to consider such issues individually.

‘For organisations liaising with their contractors to ensure compliance by staff not directly employed, we also recommend that those steps are paused.

‘Once we know the nature and extent of any repeal or changes to the regulations, we can then judge how to proceed.’

Dawn Hodgkins, the director of regulation at the Independent Healthcare Providers Network, told Independent Practitioner Today: ‘Independent providers have been working tirelessly in recent months to support those staff who are vaccine-hesitant to get vaccinated.

‘While vaccination will no longer be a condition of employment, providers in the sector will continue to encourage staff to get the vaccine and ensure that patients are as safe as possible.’

www.hempsons.co.uk/news-articles/what-now-vaccination-as-a-condition-of-deployment/

• See ‘Prepare your policy on compulsory Covid jabs’