A guide on contractual issues resulting from certain forms of flexible working

Guidance from the NHS Staff Council on contractual implications arising from certain forms of flexible working

CREDIT: This is an edited version of an article that originally appeared on NHS Employers

The NHS People Plan highlights the importance of providing opportunities for staff to work flexibly in order that they may achieve a better work-life balance. The Staff Council was engaged to negotiate the contractual changes and to support employers to improve flexible working policies and practices.

This guidance details some of the ways individuals can work flexibly that have contractual implications regarding NHS terms and conditions and may also interact with specific statutory protections for workers/employees. Statutory employment rights may vary according to whether individuals are workers or employees.

At the time of writing this guidance, the government opened a consultation on changing the calculations used to establish part-year and irregular hours workers holiday entitlement. 

In addition, the Flexible Working Bill (Employment Relations) is currently going through parliament. The guidance may be amended post-publication to reflect any future changes in legislation.

It should be used in conjunction with section 33 of the Terms and Conditions of Service Handbook and the full suite of resources available to support flexible working. 

Please note: This guidance may be expanded at a later date to provide clarity on different elements including how different types of flexible working can affect sickness absence and pay calculations.

Interaction of the contractual provisions with statutory rights

The section 33 contractual changes go beyond the statutory provisions by making the right to request flexible working applicable from day-one of employment and by extending it to all requests, rather than just one in any 12-month period. 

Under the contractual provisions, the employee does not have to justify their request with specific reasons and employers should promote the right as part of the recruitment processes, as well as through ongoing employee support.

Employers should however be mindful that those employees with at least 26 weeks’ continuous service who have not made another request in the previous 12 months will still be covered by the statutory provisions – and therefore the right to bring a claim in the Employment Tribunal within three months of an alleged breach.

Policies should ensure employees are signposted regarding the statutory eligibility criteria and that the process for making requests is compatible with statutory requirements i.e. requests made in writing and with space to give their ideas on how any effects from the requested change can be accommodated.

In line with the NHS Staff Council negotiating advice, timescales for all requests should be consistent with the statutory provisions – that is completion including appeal should take place within 12 weeks unless there has been an express agreement with the employee to extend the timescale.

Where the escalation stage is envisaged, seeking an extension may be helpful to allow enough time for the process to be completed in a meaningful way, but the employee must agree to this and the extension must be for a specific time period, with the agreement recorded in writing.