The U-Turn on Mandatory Vaccinations: How to Protect Yourself, Your Staff, and Your Practice
NewsPosted by: Dental Design 1st April 2022
On 9th November 2021, the Health Secretary announced that all NHS and private practice dental professionals must have received one Covid-19 vaccination by 3rd February and be fully vaccinated by April 2022. We spent the next few months hurtling towards the first deadline, making preparations for every eventuality – until recently when a government policy U-turn put a halt to these proceedings. But what were the reasons for this seemingly sudden change of heart? Where does it leave you as a practice owner or employer?
The government introduced mandatory vaccinations to protect staff and patients from Covid-19, specifically whilst the Omicron variant appeared to be spreading like wildfire. Despite this, a crucial consideration for policymakers and healthcare workers alike was the impact on the recruitment and retention crisis: an exodus of around 70,000 (4.9%) of NHS workers from the sector, which would have inevitably crippled an already struggling workforce.
On 31st January, Sajid Javid announced: “I believe it is no longer proportionate to require vaccination as a condition of deployment through statute” – this announcement came just three days before the proposed mandatory first vaccination date, making the consequences extremely difficult to negotiate for practice owners and managers.
Before the U-Turn, many practice owners and managers had already begun to put the wheels in motion. At FTA Law, my colleagues and I advised clients to start having conversations with their staff to gauge their vaccination status or stance on the issue. We suspected the 3rd February deadline may have been somewhat artificial – therefore, we recommended that clients held off on actioning anything beforehand to make sure it was the right decision. But not to worry – if you have already served notice to your colleagues, all is not lost. There may be a chance for you to revoke it if you wish.
Associates and self-employed staff tend to have a three-month notice period. If you have served notice to an associate or member of self-employed staff who decided not to take up the Covid-19 vaccination and want to re-engage them, you should revoke the notice immediately. Have an honest conversation and explain why you have decided to withdraw it.
In terms of employees, it depends on the stage you reached of bringing their employment to an end. If you just had a conversation to assess their willingness to get vaccinated, no formal procedure will be required. If you have already served notice, again, you may wish to revoke it if they are still within their notice period, but you should take advice on the best way to do this.
If you dismissed staff before the government policy U-turn, you can bring them back – in this case, the first day of their employment would constitute the date they started working with you before their dismissal. If dismissed employees have had a break of four weeks or more, they must begin employment on new terms and conditions – their first day will be the day they return after dismissal. There will be no compensation for dental staff whose employment has come to an end.
The General Dental Council (GDC) is currently updating its guidance and will announce a statement in due course. My colleagues at FTA Law and I advise that practice owners and managers wait for this announcement before actioning anything – only then will we fully understand the requirements of dental team members and employers.
Although the outcome of this consultation and the GDC’s response will likely deem Covid-19 vaccinations no longer a mandatory requirement of employment for dental staff, you have the freedom to impose a different policy in your practice. You can choose the standards you set for your dental team, and you may feel that mandatory vaccinations are integral to creating a safe place of work for you, your staff and your patients. In this instance, you must advise vaccination as a contractual provision for your employees.
Take care when creating a policy around mandatory vaccination, as this could be subject to discrimination legislation. For instance, if an employee is exempt from the vaccine for medical reasons. You must justify your reason for having such a policy in place – this fact is well-demonstrated by a recent legal case in which an employment tribunal ruled fair dismissal of a care home worker who refused vaccination.
At the time of this case, there were no whisperings of mandatory vaccinations or laws requiring such status. However, the care home in question determined that vaccinations were necessary to protect their residents, staff and the wider community. The care home requested that the employee get vaccinated as a condition of her employment – she refused on the grounds of concerns but did not back this up with evidence.
The care home managers decided to suspend the employee and invited them to a disciplinary hearing on the grounds of gross misconduct. Following the internal disciplinary process, the employee stated her concerns stemmed from her Rastafarian beliefs. Since she waited until the disciplinary hearing to disclose this, the care home managers were satisfied that the employee had failed to provide evidence that their concerns would justify their decision to refuse the vaccine.
The Judge based their decision on the employer’s detailed notes of all conversations with the employee throughout the decision-making process – they demonstrated that the decision was to meet a legitimate aim: to protect residents, staff and visitors to the care home. The employee’s failure to evidence any legitimate reason for refusing the vaccine – and the fact she was relying entirely on her memory rather than notes – meant the Judge found the dismissal to be fair and proportionate.
This case gives us a valuable insight into how employment tribunals consider such matters. I am confident that you can continue with this policy even if vaccinations are not mandatory by law, as long as you do so with robust, rational reasoning.
So, in summary – what should you do now? As mentioned above, you should wait until the government’s consultation period is over, if only to hear the GDC’s statement in full. If you have already served notice on self-employed staff, start having conversations about whether they still want to work with you and consider whether you need or want them back. For employees, if you have already brought their employment to an end, take advice on what to do, as it will be dependent on factors like dismissal procedures and the length of their service. Again, think about whether you want them to return to work. Lastly, consider your stance on a mandatory vaccination policy for your practice – if you would like to impose one, I recommend that you take advice on the most legally sound way to do so.
I and my colleagues at FTA Law can advise on all employment issues concerning employed and self-employed dental staff, along with mandatory vaccination policies and employment contracts. Contact me at sarah.buxton@fta-law.com or visit my website www.sarahbuxtonlaw.com to find out more.
About the author
Sarah Buxton LLB (Hons), Director & Solicitor –Employment & HR at FTA Law. Her specialisms include drafting Associate Agreements and Consultancy Agreements, Self Employed Hygienist and Therapist Agreements, contracts of employment and staff handbooks. Sarah also advises on the day to day HR and employment issues that a business owner is often faced with such as maternity/paternity leave, disciplinary/grievance procedures and termination of an employee whether due to misconduct or redundancy and is also on hand when matters go wrong representing both employer or employee in the Employment Tribunal.
