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What happens to NHS and care home staff dismissed due to mandatory COVID-19 vaccination regulations which have now been revoked?

21 March 2022

This is one of the concerns raised by the House of Lords Secondary Legislation Scrutiny Committee in its 33rd report of Session 2021-22 as it considered the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) (No. 3) Regulations 2022. These Regulations revoke the two sets of Regulations that made full vaccination against COVID-19 a condition of employment in an NHS or care home setting.

The Department of Health and Social Care (DHSC) stated in the Explanatory Memorandum (EM) accompanying the Regulations that, as the risks of the Omicron variant are now known and not as serious as anticipated, the mandatory vaccination requirement is no longer proportionate.

In its report, the Committee commends the substantial factual information and scientific evidence DHSC had provided to support the decision – but expresses surprise and disappointment that the EM fails to address:

  • the estimated number of care home staff who were dismissed when the first set of Regulations took effect in November 2021 or of staff in an NHS setting who were dismissed or left in anticipation of the second set, which were due to come into effect on 1 April 2022; and
  • any mention of whether such staff should be reinstated. DHSC told the Committee that the matter of rehiring staff was an issue to be addressed by each individual employer.

In addition, the Committee questions DHSC’s future policy on the vaccination of health and care sector staff. The EM mentions that DHSC is engaging with the NHS to review its recruitment policy so that it considers vaccination status when hiring new staff.  The report recalls that the DHSC consultation on mandatory COVID-19 vaccination for NHS staff included mandatory influenza vaccination as well and undertook to review the matter in 2022. 

Given the several concerns raised the Committee concludes that the House may wish to press the Minister for more information on all the issues highlighted in the report.

Baroness Bakewell of Hardington Mandeville, Member of the Secondary Legislation Scrutiny Committee said:

“While we commend the Department of Health and Social Care (DHSC) on this occasion for providing more detailed justification for the revocation of these Regulations than was presented when they were originally imposed, there are issues that still give cause for concern. The hints in the Explanatory Memorandum that certain vaccinations may become a requirement for the recruitment of NHS staff in the future needs proper evaluation in light of the pandemic experience.

“It is disappointing to note that despite considerable staffing difficulties caused to care homes and distress to dedicated care home staff who were dismissed as a result of the compulsory vaccination requirements, the Department is silent on whether they can or should be reinstated. This change still leaves a lot of loose ends that must be addressed.”

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