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, such as 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
This means working less than standard full-time hours for your workplace.
Flexi-time
This usually means you can choose when to start and finish your shift but commit to work ‘core hours’ at your workplace.
Compressed hours
This means working full-time hours but over fewer days. A common example is a 9-day fortnight.
Term-time only (TTO) working
This means that you work only during school term time.
Average or annualised hours
This means allowing a set number of hours to be averaged out over an agreed period of time (e.g. a calendar year).
Job-share
In this arrangement, two people are employed to work in one role and share the working hours between them.
Career breaks
This usually involves taking an unpaid break from work for an agreed period of time, without bringing your contract to an end.
Working from home
This means you do your work from home.
Remote working
This means you do your job remotely from anywhere other than your usual workplace.
Hybrid or agile working
This means you work some of your working hours remotely/from home, and the rest of your working hours at your usual place of work.

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

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

Eligibility

The rules have changed over the last few years depending on where you work. For example, NHS staff in England, Wales and Northern Ireland have had the right to request flexible working from day one of their employment, and make more than one request per year. Similar provisions apply to NHS staff in Scotland, but only two requests are permitted per year.

From 6 April 2024 similar rights will extend to all employees, no matter where they work, subject to some additional requirements.

If you work in independent health and social care

Check whether there is a written policy in place at your workplace for details. If there isn’t one, you can still follow the statutory process to make an application. Full details can be found on the gov.uk website.

England, Wales and Scotland

From 6 April, you can apply for flexible working:

if you’re an employee, but not in the armed forces
from the first day in your new job (there’s no need for you to have worked for your employer for a set amount of time), and
twice in any 12-month period.

Northern Ireland

Check whether there is a written policy in place at your workplace for details. If there isn’t one, you can still follow the statutory process to make an application. Full details can be found on the nidirect website.

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, and
not have made another application to work flexibly under the statutory right during the last 12 months.

If you work in the NHS

All NHS staff in England, Wales and Northern Ireland have the contractual right to request flexible working from day one of employment, and can make more than one flexible working request per year. In addition, requests can be made and must be considered regardless of the reason.

In the NHS in Scotland, the contractual rights are slightly different. There is still the right to request flexible working from day one of employment, but staff may only make two requests per year. Read more at the NHS Scotland Workforce Policies website.

Agency workers

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.

How to prepare and what to expect

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 healthy work-life balance - a guide for representatives provides some guidance on types of flexible working, including case studies that may help you.

From 6 April 2024, the ACAS Code of Practice will apply (find out more on the ACAS website). This is a statutory Code of Practice that all employers should follow. Failure to follow the Code would not in itself give cause to bring legal proceedings against your employer, as the Code acts as guidance only. However, an employer’s failure to adhere to the Code may be taken into consideration when settling employment-related disputes (such as tribunal claims).

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.

It would be beneficial to be clear about what you want to achieve from a flexible working arrangement, and how this way of working will impact both you and your employer.

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 use our flexible working application template to help you structure your request. 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 a number of 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, or they may be able to offer advice and support with drafting your request.

From 6 April, your employer must consider and decide upon an application within two months of receipt (including any appeal). Extensions can be arranged as long as you both agree.

Step 3: Apply

As with most issues at work, you might find it useful to have an informal chat with your manager about what changes you’d like to make to your working pattern. That initial discussion could help you identify any possible barriers to a change in your working pattern, which you could then address in your formal application.

If your manager is not supportive or receptive at this informal chat, don’t be put off from making a formal application. The law is clear that employers have a duty to properly consider all flexible working applications, so even if your manager is reluctant to support your request, following a formal process may help you both to come to a mutually agreeable outcome.

When the time comes to make a formal application, complete all necessary paperwork in accordance with your workplace policy (if there is one). Your employer may have a standard form or template for you to complete. If not, you can use our flexible working application template to help you structure your request.

Make sure you:

set out clearly the change you would like to make
specify a start date for the proposed change, giving your employer reasonable time to consider the proposal and implement it
state if (and when) a previous application has been made.

Remember, your proposal should enable your manager to agree that the new arrangement is workable. If it may actually improve the running of the service, then be sure to explain this. State how you or your employer might manage any effect of the change on the workplace/organisation.

Try to:

give solutions to any problems or issues that may arise, or have arisen from previous shift changes
highlight the benefits to the service of your proposed change
explain how it might fit in with other team members’ ways of working.

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

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.

So, it may help you to think about the potential objections to your request and cover them in your application. Above all, be diplomatic. Your approach to your manager will have a great impact on the final decision your manager makes.

Step 4: The assessment

The law requires that employers must 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 from different members of staff. Requests should be considered in the order they are received.

Additionally, the ACAS Code of Practice suggests that a meeting should be held between employee and manager once the formal application has been made. The Code of Practice also states that at such a meeting the employee should be offered the opportunity to be accompanied, either by a colleague or a trade union representative.

From 6 April, your employer must consider and decide upon an application within two 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 or ask your local RCN representative for their support.

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 and how these apply to the application, and details of any appeal process. 'Clear business reasons' does not mean the employer can simply list standard reasons (like the seven reasons listed earlier); the employer must give a detailed explanation of their reasons to refuse the request.

Approvals

If approved, your employer should write to you with:

a breakdown of the agreed changes, and
a start date for the new arrangement.

The change to your working arrangement is permanent unless agreed otherwise. Your written contract should be updated to include the new terms as soon as possible, and no later than 28 days after the request was approved.

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. Please ensure this agreement is evidenced in writing, to avoid any disputes later on.

Refusals

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.

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.

Appeals

If you work in the NHS then you have the contractual right of appeal under section 33 of the NHS Terms and Conditions handbook. Some, but not all, of the following information might be helpful for your appeal.

If you work outside the NHS, the following information applies to you.

England, Scotland and Wales

There is no automatic legal requirement for your employer to allow an appeal. However, check your local policy to see if an appeals stage is included. Offering an appeals process helps an employer demonstrate that they are handling requests in a 'reasonable manner'.

If your application is refused, you should be able to discuss your request - especially 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.

It is good practice to allow you to be accompanied by a work colleague to any appeal meeting.

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.

From 6 April 2024, your employer must consider the whole request (including any appeal) within two months of first receiving the original request (unless an extension is agreed).

Northern Ireland

If your request for flexible working is rejected you have the right to appeal against the decision. Your employer must arrange to meet with you within 14 days after you receive the appeal letter. Your employer must write to you within 14 days of the meeting to notify you of the outcome of the appeal.

Disputes

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.

Discrimination

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 of 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 as soon as possible if you think you have been discriminated against.

Arbitration

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.

Flexible working and discrimination

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 race. For more information on this please see our discrimination guidance.

Our menopause resources may also help you consider ways of working through the menopause, including flexible working.

If you work for the NHS, their guidance Supporting our NHS people through menopause: guidance for line managers and colleagues, describes ways in which your manager and work policies, including flexible working, may be used to help you at work. NHS Wales also has a Menopause policy.

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

Detriment and unfair dismissal rights

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

Homeworking and agile/hybrid working in the NHS

In October 2023, the NHS Staff Council introduced a new framework for homeworking and agile/hybrid working in England and Wales.

The principles within the framework are laid out in section 35 of the NHS Terms and Conditions handbook and are supported by additional guidance on:

regularising ad-hoc home and agile/hybrid work patterns
considerations for the health, safety and wellbeing of staff who are working from home
equalities including reasonable adjustments, equality assessments and monitoring.

Whilst the guidance recognises that home/hybrid working may be an option for some individuals, it is not suitable for all settings and roles. Employers are encouraged to consider these arrangements as just one of the options under their flexible working policies, working in partnership with trade unions to develop policies and procedures relating to home/hybrid working.

If you think that you would benefit from home/hybrid working and believe that this would work for your role, please discuss this with your manager in line with the published guidance and seek help or advice from your local RCN representative.