Flexible working

Introduction

Flexible working arrangements help create a healthy work-life balance for employees and their families. Good employers recognise the benefits of flexible working, which include recruiting and retaining the best staff, and reducing absenteeism and work-related stress.

Some of the flexible working options that could be available to you include:

• part-time working
• flexi-time
• compressed hours
• job-share
• term-time working    
• career breaks
• working from home.

From the 13 September 2021 all NHS employees in England and Wales have the right to request flexible working from day one of their employment and make more than one request per year. Please see section 33 of the NHS Terms and Conditions of Service handbook and NHS Employers' FAQs for more information.

Our careers service have some helpful information on working in ways to suit different lifestyles and maintain a work life balance.

Please also see our Nursing Workforce Standards for guidance on workforce planning and rostering.

To have the statutory right to apply for flexible working you must:

• be an employee, but not in the armed forces
• have worked for your employer for 26 weeks continuously before applying (if you work in the NHS in England or Wales the rules are different, please see below)
• not have made another application to work flexibly under the statutory right during the last 12 months

From 13 September 2021, contractual changes to the provisions for flexible working in the NHS Terms and Conditions of Service handbook (section 33), have taken effect. The changes apply to NHS employees in England and Wales who now have the right to request flexible working from day one of employment and  make more than one flexible working request per year. In addition, requests can be made regardless of the reason and without having to justify requests.

Agency workers also have the right to apply for flexible working when they return to work following a period of parental leave. Read more on agency workers. 

Applying for flexible working should be a straightforward process but there are a number of key areas to consider. The RCN publication, Working Flexibly to Support a Health Work-life Balance - A guide for representatives, provides some guidance on types of flexible working including case studies which may help you.   A successful application needs to be well thought out and submitted in good time.

If you work for the NHS, you may find their guidance for both staff and managers to be helpful.

Step 1: Check your local policies

Check if you are eligible for the statutory process and check any local policies Your employer may have their own application form if not, you can download an application letter template from Gov.uk. If you are based in Northern Ireland, read more at nidirect. 

Step 2: Start early and prepare carefully

You need to give your employer time to consider your request, so do not leave it too late. The process may take 12-14 weeks.

Preparation is key. Make sure you:  

• speak to your colleagues about your proposed changes. If you have the support of your colleagues it is much easier to put in a strong request, as it is likely your team will need to show some flexibility to accommodate you
• if there is one, speak to your local RCN representative. Your representative may have information on what happened when other staff members have requested shift changes.

Step 3: Apply

Complete all necessary paper-work. Make sure you specify a start date for the proposed change, giving your employer reasonable time to consider the proposal and implement it. Date it and state if (and when) a previous application has been made. Remember, your proposal should persuade your manager that it is feasible, and may actually improve the running of the service. Try to:

• give solutions to any problems or issues which may arise, or have arisen from previous shift changes
• highlight the benefits to the service of your proposed change.

Above all, be diplomatic. Your approach to your manager will have a great impact on the final decision your manager makes.

Step 4: Assessment

Employers should give serious consideration to all flexible working requests and consider each request objectively. An employer may receive more than one flexible working request at the same time. Requests should be considered in the order they are received.

Your employer should consider and decide upon an application within three months of receipt (including any appeal). Extensions can be arranged as long as you both agree.

Step 5: The decision

If your employer intends to approve your request then a meeting is not needed. If you are called to a meeting to discuss your flexible working request, please contact us.

 Your employer must let you know their decision to either:

• accept your request and establish a start date (and any other action) or
• agree a compromise agreed at the discussion (for example, a trial period) or
• reject the request setting out their clear business reasons, how these apply to the application, and details of any appeal process.

If approved, the variation in contractual terms is permanent unless agreed otherwise. Please be aware that if the change is permanent, you will have no automatic right to revert to the previous pattern of work. Depending on the circumstances surrounding the request, you and your employer may decide to agree that the change is temporary or subject to a trial period.  

Your employer can refuse your request on the grounds that it does not make good business sense. For example, your request may impact on staffing levels or compromise patient care. If your manager gives a clear business reason for rejecting your request then any appeal is unlikely to succeed.

Employers are under no statutory obligation to grant a request for flexible working if it cannot be accommodated by the business. It is possible that not all aspects of your proposal will be accepted, and your manager will propose a slightly different arrangement as a compromise. Be prepared for this.

Valid reasons for the refusal of all or part of a request are:

• the burden of additional costs is unacceptable to the organisation
• inability to reorganise work amongst existing staff
• inability to recruit more staff
• the employer considers the change will have a detrimental impact on quality
• the employer considers the change will have a detrimental impact on the business’s ability to meet customer demand
• detrimental impact on performance
• insufficient work
• planned structural changes.

Step 6: When to call us

Hopefully your application will be successful but if not, you may be called to a formal meeting to discuss your application. If so, please contact us.

England, Scotland and Wales

There is no legal requirement for your employer to allow an appeal. However, check your local policy to see if an appeals stage is included. 

If your application is refused you should be able to discuss your request if there is new information that was not available at the time of the original decision, or if you feel that the application was not handled in line with your employer’s policy. Having a clear appeal process can also help avoid a workplace grievance. As with the initial discussion, it is good practice to allow you to be accompanied by a work colleague to any appeal meeting. Your employer must consider the whole request, including any appeal, within three months of first receiving the original request (unless an extension is agreed).

If you work in the NHS, please check your local policy as you may be entitled to take a trade union representative to the appeal meeting.

Northern Ireland

There may be grounds for a claim to an employment tribunal if the employer fails to provide a valid reason for refusing your request or if there has been a breach of procedure. Refusal of a flexible working application could, in some circumstances, be discriminatory. For example, if a requirement for staff to work a particular working pattern puts women with childcare commitments at a particular disadvantage when compared to men - which cannot be justified - this treatment could amount to sex discrimination.

Employees must present their complaint to an employment tribunal within three months of the date that the employer’s decision or, if in relation to procedural breaches, three months from the date of the alleged breach. Please contact us for further advice.

Another option (if both parties agree) is to use ACAS Arbitration Service for England, Wales and Scotland. If both parties agree to go to an arbitration service to resolve the dispute, the employee will not be able to take the matter to an employment tribunal later on. If you are unsure about your options, please contact us.

For Northern Ireland, the LRA (Labour Relations Agency) offers a free and confidential conciliation service prior to submitting a claim to a tribunal. 

If you have a disability, your employer is legally obliged to make reasonable adjustments to accommodate your disability. This may include changes to your shift pattern. Equality legislation gives disabled people protection from disability discrimination in a range of areas, including employment.

In addition, if you are concerned that you are being treated less favourably for any other reason, you may be protected from discrimination under the Equality Act 2010. It is unlawful to discriminate against someone because of a protected characteristic which includes age, pregnancy and maternity, or someone’s race. For more information on this please see our discrimination guidance.

This is a complex topic, so if you have further concerns please contact us.

If you are subjected to any detriment (for example, bullying) or are dismissed by your employers because of exercising your right to make a statutory application for time off, or for flexible working, you might be able to bring a claim in an employment tribunal. Time limits apply. Please contact us for more advice.

ACAS guidance on flexible working

NHS Terms and Conditions of Service Handbook

CIPD guidance: Creating an enabling future for carers in the workplace

Labour Relations Northern Ireland

Maternity and family

RCN Nursing Workforce Standards 

RCN Working Flexibly to Support a Health Work-life Balance - a guide for RCN representatives