• NHS employers will be required to allow staff to work flexibly from start of employment under new rules
  • Employers expected to work with unions to further widen flexible work options
  • Move follows “powerful reminder” to employers after nurse won tribunal appeal following shift pattern dispute

A new deal is being agreed between unions and NHS employers to make it easier for staff to request flexible working arrangements, including enabling workers to request flexible working from their first day. 

The new measures, the principles of which were today set out in a joint statement from the NHS staff council titled Flexible Working in the NHS, are designed to help the NHS recruit and retain more of its workforce.

The new contractual terms will allow staff to: request flexible working from the start of their employment rather than after six months service; make an unlimited number of applications for flexible working; and submit applications without having to justify the request.

The move follows an Employment Appeal Tribunal judgment last week, in which a nurse won an appeal against a trust which dismissed her after she was unable to meet a new requirement for community nurses to work weekends (See box below).

The new measures will come into force from 13 September in England, Scotland and Wales. It is expected Northern Ireland will soon follow suit with similar guidance.

NHS Employers, unions and NHS England and Improvement said in a joint statement the measures would put the onus on employers to promote flexibility options for all jobs at recruitment stage and discuss them regularly with their employees. Employers will also be expected to work with unions to develop a broader range of flexible working arrangements, the statement said.

NHS Employers chief executive Danny Mortimer said: “Our members understand that there is more work to do to make sure the NHS People Promise can be fully implemented, and to ensure that flexible working practices are available to all NHS staff.”

Ruling sends ‘powerful reminder’ to employers

The new rules follow an EAT judgment last week, in which a community nurse won an appeal against North Cumbria Integrated Care Foundation Trust, which dismissed her in 2016 after she was unable to meet a new requirement for community nurses to work weekends.

Gemma Dobson worked fixed shifts to care for her three children, two of whom are disabled. Judge Mr Justice Choudhury found in her appeal that “childcare disparity” must be taken into account by employment tribunals “if relevant”.

Lee Jefcott, partner at Brabners law firm, said that although the appeal was not “new law” it was a reminder “this is the state of the law”.

“This is a powerful reminder to employers — particularly NHS Employers — that they need to be flexible when introducing new working arrangements,” Mr Jefcott said.

“It heightens awareness that employers do need to think twice,” Mr Jeffcott added. “This boils down to having a good business reason for introducing the change, and consulting with affected employees and considering any particular problems the changes would cause, and being open to adjusting the arrangements.”

Alison Leary, chair of workforce modelling at Southbank University, said: “If employers in healthcare are serious about retention they need to understand that the healthcare workforce is gendered with personal caring responsibilities.”

She added: ”This case is a benchmark for others and if our inbox is anything to go by the impact on employers could potentially be huge.”.

North Cumbria Trust said: “The trust does not believe that [it] is appropriate to comment further at this stage given that the matter will return to the original employment tribunal.”

A spokeswoman continued: “It is important to note that the employment appeal tribunal did not find in its judgment that Mrs Dobson was discriminated against or unfairly dismissed by the trust which is why the matter will return to the original employment tribunal for further consideration.”