Protecting yourself & your business: getting ready for VCOD2

At the time of writing this article, the Government looks poised to delay the controversial new legislation known as ‘vaccination as a condition of deployment’ (or ‘VCOD2’) which will make Covid vaccines mandatory for NHS workers in England. The debates for and against the new laws continue to be heard, but even if the mandate is delayed, it will mean those working in the NHS will be facing the same dilemma this summer as they would otherwise face now: comply with the mandate or face dismissal.

As things currently stand, in order for a person to have received two doses of the Covid vaccine by the 31 March 2022, they will have to have had their first dose by 3 February. This is likely to account for the large number of enquiries we have seen pouring in from GP practices, seeking advice on their position.

In this article, we look at what the new law means for Practices and their employees.

What if an employee refuses to be vaccinated?

If VCOD2 goes ahead as planned, then an employee refusing to be vaccinated could face dismissal under the definition of ‘Some Other Substantial Reason’ or ‘SOSR’. An employer intending to rely on SOSR to dismiss an employee is advised to follow a fair procedure, which may include discussing the employee’s concerns about vaccination with them, and taking steps to find alternative work for an affected employee.

Some employers will argue that the obligation to follow a fair procedure is not necessary, because in all likelihood, in light of the mandate and the limited opportunities for re-deployment within GP Practices, doing so is unlikely to make a difference to the outcome. If this argument were to be successful, it could lead to any award for unfair dismissal being substantially reduced.

Redeployment

Many Practices will struggle to find space in their current premises to ensure separation of an affected employee. Potential for redeployment and in particular, selection for alternative work is an aspect of the dismissal process where disputes are likely to arise. If you are an employer dismissing several unvaccinated staff but have identified just one alternative position, you may need to take advice on how you choose which employee to save from dismissal and redeploy.

New policies, pre-employment checks and contracts

If vaccination status is to be a permanent pre-condition to NHS employment, all employers will need to develop policies to reflect the new law. Safe systems to ensure validity of proving vaccination status will need to be put in place and pre-employment checks and checks on locums and contractors will also be essential.

Redundancy

NHS England has made clear that employers must not treat VCOD2 dismissals as redundancies; the consequence being that dismissed staff will not be eligible for any redundancy pay.

Legal claims

The controversy and perceived unfairness by many of VCOD2 dismissals, suggests that dismissed staff are unlikely to go quietly. Class actions may even follow. Although compensation for unfairness will be limited (if awarded at all), we predict claims will be issued and employers will face the unwanted repercussions of this, in terms of time and money spent and reputational impact.

Keeping pace with change

Unlike other preconditions to employment, what constitutes “fully vaccinated” is a moving target. It is unclear how the Government intends to deal with this, save for the fact that Ministers have recently said that the booster is being considered as an additional precondition. How will employers deal with the state of flux in their contractual documentations and policies?

Impact on staffing and recruitment

VCOD2 dismissals will leave significant gaps in staffing across an already stretched NHS. Any dismissals will have a knock-on effect on the remaining workforce with employees being forced to take on additional responsibilities and work longer hours. Further pressure on NHS staff will be seen by most as unreasonably burdensome and the impact on staff retention and recruitment could be dramatic.

Morale and support

How can employers and employees keep buoyant and continue to feel supported at this time? For many, VCOD2 could see long serving members of staff leave NHS service in a matter of weeks, whilst those that remain must continue to provide high levels of care in what is the most demanding and uncertain of environments.

​Conclusion

Whilst many questions remain unanswered, our view is that whether the VCOD2 comes into force in two months or later this year, the time for employers to develop workforce strategies to cope with the change and to inform and consult with affected staff is now.

We can advise GP Practices and PCNs on how to engage with staff, the potential redeployment of staff, as well as advising on staff handbooks and Partnership Deeds. Please contact Daphne Robertson for a free initial consultation: d.robertson@drsolicitors.com or telephone 01483 511555.