Dismissing and redeploying unvaccinated staff: What do employers need to know?

Following the Government’s vaccination mandate for everyone undertaking direct patient care as part of a Care Quality Commission (CQC) regulated activity, it’s feared that some healthcare settings could face closure if large numbers of staff continue to refuse the Covid vaccine.

All front-line workers, as well as non-clinical workers who have direct, face to-face contact with patients, will need to have both doses of the vaccine by the 1st of April 2022.

After this date, those who remain unvaccinated without official proof of medical exemption granted by a GP will then have to be redeployed to a non-patient facing role or dismissed.

Around 630,000 clinical NHS staff, as well as agency workers and contractors in frontline roles, medical transport services, dentists, pharmacists, and non-clinical staff like receptionists are impacted by this.

Despite a take-up of almost 90% for NHS staff, making jabs compulsory has proved challenging for the healthcare sector, with one hospital trust fearing the closure of their maternity unit with 40 midwives still unvaccinated.

With clinics on the brink of closure, it raises the question of what exactly employers need to do in terms of dismissing and redeploying staff.

Alan Price, CEO at BrightHR says: “Whilst the introduction of mandatory vaccination regulations has encouraged increased uptake of the Covid vaccine, there are still significant numbers of employees who are either unwilling or unable to do so. As such, it will not be possible for them to continue in their frontline care roles.

“With nearly 95,000 NHS staff unvaccinated, and facing redeployment or dismissal, its important employers know what to do and are prepared, ahead of the proposed deadline.”

Here are the main things employers will have to consider before the deadline:

How to redeploy unvaccinated workers
Many employers may assume dismissal is the only option they have when it comes to unvaccinated staff. However, this is not the case. The first port of call is always to consider what alternative options are available, including redeployment to positions without direct, face-to-face contact with service users. For example, employees with the relevant skills, qualifications and experience could be moved to administrative or remote-advisory roles, such as the NHS 111 helpline.

If an employee accepts the new role, they will need to be given an updated contract outlining the new rules. However, if they refuse and there are no other alternative roles available, it is likely that employers will have no option but to dismiss them when the April deadline arrives.

Approaching the dismissal of unvaccinated staff
Even though the mandate to dismiss unvaccinated staff is not something that’s under employers’ control, there is still the possibility that they could face a tribunal claim if the dismissal is not done properly. If an employee is unable to be vaccinated, they could claim for unfair or constructive dismissal. And if the reason for this is a protected characteristic, for example due to a disability or on religious grounds, they could claim for discrimination.

Dismissal should only be considered after exhausting all possible alternatives, and formally consulting with the affected employee(s) on an individual basis. It should only be confirmed where redeployment is unavailable, or if the employee declines the offer of alternate positions.

In such cases, the employee should be given notice in line with their contractual entitlements and given the right to appeal the decision. Following all these steps will help protect the organisation from any potential claims of unfair dismissal or discrimination.

How to prepare for the April deadline
Dismissing unvaccinated and non-exempt staff should always be an employer’s last resort. Employers need to be carrying out various steps now, to avoid being in a situation when the 1st of April come around. These include:

Encouraging all staff to be vaccinated unless they’re exempt
Ensuring all exempt staff know they will have to provide official proof of exemption before the 1st of April
Inviting employees to a formal meeting ahead of the April deadline, keeping them informed of the mandate and what choosing not to take the vaccine will mean for their employment

Redeploying employees to non-frontline roles where possible
Trying to change duties or offering remote work
If you have taken all these steps and still have unvaccinated members of staff, then there will be no other choice but to dismiss them – but remember, it’s important to follow a fair process.