Flexible working for nurses in the NHS and UK law

Introduction

Flexible working allows individuals time to recover and deal with familial issues, as well as complete day-to-day home tasks that cannot be performed during working hours.

Flexible working was made a priority during the COVID-19 pandemic, as employers were forced to find new ways in which employees could do their jobs. However, nurses were working at the frontline of in-person healthcare during the pandemic, in many cases resulting in a loss of flexibility and work–life balance.

Employees have a right to request flexible changes to their work, including:

• the number of hours they work
• when they start or finish work
• the days they work
• where they work (HM Government, 2024)

Work pressures and burnout

The Royal College of Nursing (2024) recognises the benefits of flexible working, noting that:

Flexible working may help to retain staff who may be at risk of burnout. A study by Dall’Ora et al (2015) established that nurses who work shifts of 12 hours or more were 50% more likely to experience emotional exhaustion and burnout than those who work 8-hour shifts. The nurses who worked longer shifts also had a greater likelihood of reporting an intention to leave their job.

An employment survey conducted by the Royal College of Nursing (2021) found that nurses frequently work for longer than their contracted hours, the majority of which goes unpaid. As a result of staff shortages and the need to work additional hours, 37% of respondents were unable to take their full entitlement of annual leave and 68% reported that they were under too much pressure at work. Additionally, 57% of respondents were either thinking about leaving their job or were actively planning to leave (Royal College of Nursing, 2021).

These results point towards the need for changes to flexible working as well as communication between staff and managers to support nurses and increase retention (Farrah, 2022).

Flexible working in UK law

The right to request flexible working came about as part of the Employment Act 2002, later amended by the Flexible Working Regulations 2014. Originally, the right to flexible working gave parents of children aged under 6 years (or of children with disabilities aged under 18 years) the right to apply to work flexibly and required employers to consider applications seriously.

The 2014 regulations stated that all employees with at least 26 weeks of continuous employment could make a request for flexible working with any reason.

In 2021, the UK government announced proposals to reform flexible working laws following calls to make changes to the 2014 regulations. This brought about the Employment Relations (Flexible Working) Act 2023. The Act, when it comes into effect on 6 April 2024, will give employees the right to make two requests for flexible working in any 12-month period, rather than one. The employee will no longer be required to explain what effect, if any, the change they are requesting would have on the employer and how this might be dealt with.

Additionally, employers will be required to respond to a request within 2 months, rather than 3 months, and will have to consult with the employee before rejecting their request. This right will apply from the first day of employment.

However, the legal grounds for refusal have not changed; employers will still have the same powers to deny requests. There are seven specified reasons to refuse a request for flexible working, which are:

1. extra costs that will damage the business
2. the work cannot be reorganised among other staff
3. people cannot be recruited to do the work
4. flexible working will affect quality and performance
5. the business will not be able to meet customer demand
6. there is a lack of work to do during the proposed working times
7. the business is planning changes to the workforce (HM Government, 2024)

These changes are accompanied by changes to the Advisory, Conciliation and Arbitration Service (2024) Code of Practice on handling flexible working requests.

NHS rules

The Royal College of Nursing outlined contractual changes to the provisions for flexible working in the NHS terms and conditions of service handbook (section 33) (NHS Employers, 2023).

The changes applied to NHS employees in England, Wales and Northern Ireland who gained the right to request flexible working from the first day of employment and to make more than one flexible working request per year. In addition, requests can be made regardless of reason and without having to justify requests.

Making a request

As part of the Working Flexibly to Support a Healthy Work-life Balance guidance, the Royal College of Nursing (2022) offers advice on how nurses should make a request for flexible working.

The key to making a successful flexible working request is preparation. Applicants should begin by checking their local policies against the statutory process. They need to plan ahead when making a request, as employers have up to 3 months to make a decision, or 2 months following implementation of the new Act in April 2024. Part of the planning process can involve discussing the request with colleagues to gain their views, as their support will strengthen an applicant’s case. At the same time, it is suggested that applicants speak to their Royal College of Nursing representative to see if they have experienced similar requests and the outcome.

Dealing with a refusal

If an employee is dissatisfied with an employer’s decision on a flexible working request, their ability to challenge this under flexible working legislation is limited. The employee may be able to take their employer to a tribunal for issues such as:

• not dealing with a request in time
• rejecting a request for reasons outside of those in the legislation
• not dealing with the application in a reasonable manner

Moreover, if an employee’s claim concerning flexible working was successful under tribunal, the maximum level of compensation is only 8 weeks’ pay, unless the employee raised other claims – for example, indirect sex discrimination or constructive dismissal. As such, the financial risk to employers for claims around the flexible working procedure is relatively low.

Conclusions

Flexible working is important to consider for both employees and employers wishing to recruit and retain staff. The NHS employer’s contract provides an outline of the processes involved when requesting and handling requests for flexible working.