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On 31 January 2022, Sajid Javid announced a reversal of government policy to implement mandatory vaccinations throughout much of the health and social care sectors. He explicitly stated that he was:
“announcing that we will launch a consultation on ending Vaccination as a Condition of Deployment in health and all social care settings”
The 2021 (Care Home) Regulations imposed mandatory vaccination for those who work in care homes. The new 2022 Vaccine as a Condition of Deployment Regulations (VCoD) applied much more widely in the health and social care sectors and were scheduled to come into place on 1 April. To revoke them, a statutory consultation is required first.
The Secretary of State has relied on the powers under sections 20(1) to (3) and (5) of the Health and Social Care Act 2008 to make the regulations imposing the VCoD requirements, and is relying on the same powers to repeal these requirements. These regulations concern the requirements on those carrying out regulated activities.
Section 162(3)(b) of the HSCA 2008 requires that for regulations to be made or altered under section 20, there must be a positive resolution of each House of Parliament. The reason for this, under HSCA 2008, is that the contravention of regulations made under section 20 can be an offence punishable by a fine. As such Parliament has, as is quite common for such provisions, required its consent to create or abolish criminal offences.
Section 20(8) of the Act also requires the Secretary of State to consult “such persons as the Secretary of State considers appropriate” before making such regulations, unless the regulations do not effect substantial change. It would be a difficult argument to make that the introduction or removal of these requirements do not amount to a “substantial change.”
The government consultation was launched on 9 February and closed on 16 February 2022. The outcome of the consultation came out on 1 March 2022, confirming that the mandatory Covid vaccination requirements in Health and Social Care are being repealed from 15 March 2022.
The new Regulations revoking the 2021 Care Home Regulations and the 2022 Vaccine as a Condition of Deployment (VCoD) Regulations went before Parliament and were also formally “made” on 1 March 2022. They confirmed that from 15 March 2022, the mandatory vaccination requirements both in Care Homes and more widely with VCoD are being revoked.
Guidance
At the end of January, NHS England/Improvement issued an update and requested:
“This change in Government policy means we request that employers do not serve notice of termination to employees affected by the VCoD regulations”
What Now?
For staff recruited to commence employment on or after 15 March 2022, there is no longer a requirement that they be fully vaccinated. If staff who were not fully vaccinated left employment or were dismissed due to the Care Home vaccine Regulations, they can legally be re-engaged from 15 March 2022.
For those staff in the wider health and social care sectors who were subject to VCoD consultation about their vaccination status (potentially unvaccinated) and likely had their consultations paused, those consultations can now be ended. We finally have certainty and the 1 April 2022 deadline for mandatory vaccination will not now come into effect. For new recruits there is no longer a requirement that they be fully vaccinated.
For organisations liaising with their contractors to ensure VCoD compliance by staff not directly employed, those consultations can now also be concluded as contractor staff will also no longer need to be vaccinated. If mandatory vaccination obligations have already been imposed or agreed with contractors, then consideration should be given to reversing or implementing those obligations.
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