Vaccination as a Condition of Deployment (VCOD) in England – UNISON Branch advice

Background

In late 2021, new regulations were agreed by parliament making it unlawful for an employer delivering Care Quality Commission (CQC) regulated activities, to deploy an unvaccinated worker in a face-to-face role from 1^st April 2022. There are some limited medical exemptions within the regulations.

Vaccinated is defined as a “complete course of a Medicines and Healthcare products Regulatory Agency (MHRA) approved COVID-19 vaccine”. This does not currently include the booster jab.

The 3^rd of February 2022 is the last date for workers to get their 1^st dose to be fully vaccinated in time for when the regulations take force from 1^st April 2022.

UNISON supports vaccination in health and social care. The vaccine is safe, and we encourage all members who do not have a medical exemption to get their jab. During the consultation UNISON was very clear that we do not agree with mandating vaccinations – which should always be voluntary.

UNISON remains extremely concerned about the impact that the VCOD policy will have on numbers of staff leaving the NHS. We have raised, and continue to raise, these concerns with policy makers and politicians.

 

Current situation

UNISON branches are being approached by NHS staff who are trying to understand the regulations and to get advice on their decision. UNISON should not advise any member to be vaccinated against their will. UNISON should not advise members to refuse a vaccination. This is an individual decision for the staff member alone to make. UNISON should be ensuring that employers are providing the right information for people to make an informed decision.

The only exemptions contained in the regulations are for limited medical reasons plus people under 18, those taking part in a COVID trial and those without face-to-face contact. There are no emptions on grounds of belief or religion within the regulations. Therefore, UNISON cannot give a view about whether a person’s individual reasons for refusal are reasonable or not. UNISON representatives should ensure members understand that a continued refusal to become fully vaccinated may ultimately lead to a dismissal under the current regulations.

Whilst many organisations are calling for a delay in the implementation of the regulations, as it stands, they came into force from 6^th January 2022 with a 12 week grace period until 1^st April 2022. Currently employers are working to encourage vaccination but, from 3^rd February onwards, employers will begin formal processes and may issue notices of dismissal. Between 3^rd February 2022 and 31 March 2022 employers will seek to either redesign jobs or explore options for redeployment. However, from 1^st April 2022, staff who remain unvaccinated without an authorised exemption will face dismissal.

 

Roles of UNISON branches

A short summary of the latest NHS guidance on VCOD is below. Branches should familiarise themselves with phase 1 and phase 2 guidance. Employers are expected to work in partnership on the impact of the VCOD policy, including working with health and safety representatives on risk assessments. However, the processes to dismiss staff are the employers. UNISON’s role is to represent members through the processes, to ensure staff can make their case and seek consistent and fair outcomes.

UNISON branches should follow normal rules for representation as set out in the “Code of Good Branch Practice” and “Member representation – a UNISON guide”. This includes the use of a UNISON case form to record relevant information, including records of formal meetings and correspondence with the employer.

In the event of a dismissal, normal case processes apply. UNISON cannot promise legal outcomes as these new regulations are untested in the courts.

UNISON branches can also support members with:

• getting access to information to support their decision making – for example, accessing occupational health or other medical advice on exemptions or to overcome hesitancy
• discussions with employers about whether roles are in scope of the regulations
• making their case to their employer through the formal processes including making suggestions on potential adjustments to their current role or redeployment options
• understanding the impact of the vaccination policy

It is impossible to give blanket advice as much will depend on the staff member’s individual circumstances.

UNISON branches should also raise concerns with employers about numbers of expected dismissals and the impact these will have on safe staffing levels. Employers are expected to notify the CQC if they are unable to continue delivering activity safely. The guidance further states that “Employers should continuously assess the impact of the regulations on recruitment and retention activity, patient care, staff health and wellbeing and their public sector equality duty”.

We recognise the pressure and stress these processes will have on our members. Employers should be providing health and wellbeing support. UNISON can also offer welfare support through There for You and branches may want to support staff to understand the potential professional and financial impacts of redeployment or dismissal.

 

Existing guidance

UNISON have developed a set of frequently asked questions that we are keeping regularly updated and can be found here.

NHS England has published two sets of guidance, which UNISON has contributed to through the NHS Social Partnership Forum.

1. Vaccination as a Condition of Deployment (VCOD) for Healthcare Workers. Phase 1 – Planning and preparation
2. Vaccination as a Condition of Deployment (VCOD) for Healthcare Workers. Phase 2 – VCOD Implementation

The main emphasis of the NHS guidance is to encourage uptake of the vaccine in those people who are currently unvaccinated or partially vaccinated. This includes working in partnership with trade unions, disseminating vaccine information, conducting supportive one-to-one conversations, and engaging with clinical and community experts to convert vaccine hesitancy to vaccine uptake.

Those who are exempt can remain working in their current roles and employers should ensure risk assessments are updated and all measures are in place.

 

Key dates

• 6^thJanuary 2022 – regulations come into force (there is a 12 week grace period to allow staff and employers to increase vaccination uptake in time for full implementation on 1st April 2022).
• 3^rd February 2022 – the last date by which the first vaccine can be taken to complete the full course of vaccination in time for 31^st March 2022.
• 4^th February 2022 – the date from which employers can start final formal processes.
• 1^st April 2022 – full implementation of vaccine as a condition of deployment regulations.

During January staff will be invited to formal meetings to discuss their options. Employers have been advised that notice periods may run concurrently through these processes.

 

Formal Processes

Branches should familiarise themselves with the VCOD phase 2 guidance. Some key points are highlighted here.

In all decisions, employers are advised to follow principles of reasonableness and practicability. This means balancing the needs of the individual who does not wish to be vaccinated against the needs of the team, the organisation and patients. Employers are expected to keep records throughout the process and make objective decisions.

Employers should be honest, non-judgemental and open in their conversations with staff about the consequences of continuing to refuse the vaccine. This should include the options available to them, the limitations to what might be achieved and the reality that this could ultimately lead to a dismissal.

Members of staff have the right to be accompanied and employers should ensure they keep in touch with staff who are absent from work for any reason.

The option to get vaccinated must remain open to staff throughout the formal processes. Late decisions to get vaccinated may have an impact on potential outcomes which will need to be discussed locally with the employer. For example, someone deciding to get vaccinated after 3 Feb 2022 and not being fully vaccinated by 31 March 2022 may need to discuss extenuating circumstances with the employer and a decision made on the likelihood and timing of being fully vaccinated.

 

Equality considerations

Employers must have due regard of the Equality Act 2010 and are expected to undertake assessments of the equality impact of all processes, decisions and outcomes. Formal processes should advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it. Any adjustments to the timing of starting formal processes should be reasonable and fair.

Branches may find the DHSC’s Making vaccination a condition of deployment in health and wider social care settings – Equality Impact Assessment a useful resource.

 

Potential outcomes

Three main outcomes from the formal processes are contained in the NHS guidance. These should be read and considered carefully along with any local guidance, policy or process.

 

1. Reconfiguration of roles

This outcome is broadly described as where a role can be redesigned in way that means it is no longer within the scope of the regulations. The guidance is clear that decisions need to be based on reasonableness, practicability, the need to act consistently and a risk assessment.

Reconfigurations need to be effective by 1 April 2022.

 

2. Redeployment for the purposes of VCOD

Two types of redeployment are described in the NHS guidance – temporary and permanent. The guidance makes a distinction between redeployment for the purposes of VCOD and other types of organisational change, requiring a standalone process.

Temporary redeployment may be possible under a short term medical exemption for pregnant women in which case pay protection will apply. This may also be used for staff who decide to get vaccinated but will only be able to be completely vaccinated after 1 April 2022. There is discretion for employers based on objective consideration of extenuating circumstances on a case by case basis.

Permanent redeployment involves the unvaccinated member of staff seeking a permanent change of job into a role outside of the scope of the VCOD regulations. Employers are advised to apply fair and consistent recruitment and selection processes to enable staff to apply for roles whilst also balancing the needs of other staff seeking redeployment within the organisation.

For example, the guidance suggests limited ringfencing of internal vacancies for unvaccinated staff but due regard should be in place to ensure that staff who require redeployment due to organisational change, ill health, pregnancy/maternity or any other legal entitlement are not disadvantaged.

In effect, permanent redeployment for the purposes of VCOD involves someone finding and voluntarily applying for a different role as an alternative to dismissal. The guidance suggests that pay protection is not expected to apply in these circumstances.

Employers need to record objective reasons for outcomes and any changes to roles through redeployment are expressly agreed.

The NHS guidance sets out mutual responsibilities around redeployment which involve organisations providing support and workers engaging with the processes, including letting managers know in the event of declining a role. Employers are expected to offer support for staff such as interview skills workshops, psychological, health and wellbeing services and reasonable paid time off to attend interviews.

 

3. Termination of employment for the purposes of VCOD

From 1^st April 2022, it will be unlawful for an employer to deploy staff who continue to remain unvaccinated without an exemption (or refuse to disclose their vaccination status) in face-to-face roles.

If all other options have been objectively discounted then the employer may seek to dismiss the employee on the grounds of a contravention of statutory restriction or in the alternative, “some other substantial reason” (SOSR).

To prevent unfair dismissals, employers need to follow a fair process and act reasonably. The NHS guidance suggests the following – lifted from relevant section:

• Inviting the individual to an initial meeting to discuss the regulations and their vaccination status which could be either in person or virtual.
• One-to-one supportive conversations, discussing concerns, providing vaccination information materials and access to specialist experts.
• Consideration of the extent to which the regulations affect the individual’s ability to carry out their job i.e. it is a legal requirement of the individual’s role.
• Consideration of any possible adjustment to the individual’s role.
• Consideration of alternative roles.
• Invitation to a meeting warning the individual that the outcome may be dismissal if they do not evidence, they are vaccinated or exempt within specified timescales.
• A meeting (either in person or virtually) at which the individual can be accompanied by a trade union representative or work-based colleague. The Chair of the meeting should assess whether adequate consideration of alternatives, such as adjustment or redeployment, has been given and whether, in light of those matters, employment should be terminated.
• Dismissal on notice (in accordance with contractual arrangements) to terminate not before 31 March 2022.
• Providing the individual with a right of appeal against dismissal.

Branch resources and advice

VCOD guidance Phase 1: https://www.england.nhs.uk/coronavirus/publication/vaccination-as-a-condition-of-deployment-for-healthcare-workers-phase-1-planning-and-preparation/

VCOD guidance Phase 2: https://www.england.nhs.uk/coronavirus/publication/vcod-for-healthcare-workers-phase-2/

UNISON NHS FAQs https://www.unison.org.uk/health-news/2021/11/mandatory-covid-vaccination-of-health-and-care-workers-england/

Bargaining support guide https://www.unison.org.uk/content/uploads/2021/12/COVID-19-vaccination-status-requirements-in-the-workplace

NHS Support Available for our NHS People https://www.england.nhs.uk/supporting-our-nhs-people/support-now/

UNISON There for You https://www.unison.org.uk/get-help/services-support/there-for-you/

2019 UNISON Rulebook https://www.unison.org.uk/content/uploads/2020/01/25913-1.pdf

Code of Good Branch Practice 2014 https://shop.unison.site/product/code-of-good-branch-practice-updated-2014/

Member representation A UNISON guide https://www.unison.org.uk/content/uploads/2016/02/23332.pdf

Vaccination as a condition of deployment – UNISON branch and organiser briefing 18 January 2022