After a few weeks of speculation that the Government would U-turn and repeal its mandatory vaccination rules, we finally heard from Sajid Javid last night.  

He could have created certainty for the health and social care sector by repealing the new rules. He told us, "I believe it is no longer proportionate to require vaccination as a condition of deployment through statute."  Instead he has announced a consultation on ending vaccination as a condition of deployment. 

The consultation on introducing mandatory vaccination in all CQC regulated settings told the Government it was a bad idea. They introduced the legislation anyway. Why do they need to consult on the removal? The obvious answer would be that they hope by leaving the legislation on the statute books for as long as possible (presumably until close to 1 April 2022), health and social care providers will continue to apply the existing rules for care homes and act as if the legislation for all other settings is coming in.  When questioned further about this Sajid Javid said:

 "The Government have made a decision on this matter, which I hope I was very clear about in my statement, but for statutory reasons there needs to be a consultation. There will be a two-week consultation and then a statutory instrument will be presented to the House and will be subject to the will of the House.

The Government have made their decision on this, and the Department will write today to all NHS trusts and contact care home providers and wider social care settings, such as domiciliary care, to make it clear that the deadline my right hon. Friend referred to is no longer applicable. I am very happy to make that clear. She has raised an important point. While the decision is subject to this House, there will be no further enforcement of the regulations, for the reasons I have set out today."

So how should you navigate this mess the Government has made?

Care homes

For care homes, the law won't change until the "VCOD1" Regulations, which came into effect on 9 November 2021, are repealed. As a result, until the legislation is repealed you must continue to apply the VCOD1 rules and ensure that anyone entering a care home who is not exempt has been fully vaccinated. 

Care home providers will also still be likely to be able to successfully defend unfair dismissal claims relating to staff who were dismissed to comply with the VCOD1 rules.

All other CQC regulated settings

Whilst in theory VCOD2 could still come into force on 1 April 2022, it seems clear that won't happen.  

As a result, providers need to decide whether they still want to introduce mandatory vaccination. For most, I expect the decision will be that they do not. If the Government don't think there is evidence to justify the policy, it is also likely to be hard to convince an Employment Tribunal that the policy could be reasonable on health and safety grounds.  

In the absence of being able to show a legal requirement for mandatory vaccination, I consider the only possible justification for mandating vaccines would be where a provider can evidence that the people who use their services expect the people who provide them with care and support to be vaccinated. This may be hard to evidence.

Communication with staff

For providers who decide they do not want to mandate vaccination across their workforce, I consider it would be appropriate to write to all staff who were going to be impacted by the new legislation to tell them the Government has changed its mind and it now looks likely to repeal the mandatory vaccination rules.  

Providers could highlight that the change is subject to further consultation and encourage their workers to respond to the consultation. 

Where providers have already issued notice to employees conditional on the regulations coming into force, those notices will not need to be withdrawn (albeit that would help create certainty for the employees and give the best hope of retaining them).  

Where notice has been given which isn't conditional on the regulations coming into force, I would suggest the notices are withdrawn to try and give the best possible chance of retaining the employee. However, I do not consider any provider would be criticised by an Employment Tribunal for holding off from withdrawing any notice of dismissal until the regulations are revoked. 

For providers who decide they still want to mandate vaccination for all employees who have direct contact with the people you support, I suggest gathering feedback from the people you support (and their families where appropriate) to understand their expectations and to update your employees further once that has been obtained. 

The prospects of fairly dismissing employees for refusing vaccination will depend on the strength of the evidence obtained and dismissals will not be risk-free.    

What about new recruits?

The risks of applying a "no jab - no job" policy to new recruits have not changed. Provided an exception is made where the reason someone can't be vaccinated relates to a protected characteristic, for example, pregnancy, an employer can choose to only offer employment to those who have been vaccinated.  

In light of the significant recruitment challenges impacting the sector and the latest evidence suggesting vaccination is not stopping the spread of Omicron, some providers may revisit whether a "no jab-no job" policy remains the right approach for them.

Responding to the consultation

Providers have so many challenges at the moment responding to what appears to be a pointless consultation may be low on the list. 

I would suggest a short response to at least tell the Government what you think of the mess they have made and the need to bring certainty quickly and, whilst there may not be any prospect of it, a request for compensation for all the time and money wasted on seeking to implement a policy that looks very likely to be withdrawn.