Flexible Working for Childcare: Your Day-One Right Explained

If the shift pattern you're on genuinely doesn't work around childcare, the honest first question isn't "what childcare can I find to fit this rota" — it's "can I actually change the rota itself." UK employment law gives every employee, from their very first day of a job, a real legal right to ask that question formally, and NHS staff specifically have had an even stronger version of that right since 2021. This guide sets out exactly what the Employment Relations (Flexible Working) Act 2023 changed, what counts as flexible working, how the request and response process actually works, what a valid refusal looks like, and how NHS Terms and Conditions sit alongside — and in some respects ahead of — the general statutory right.

The Employment Relations (Flexible Working) Act 2023: what actually changed

The Employment Relations (Flexible Working) Act 2023 received Royal Assent in July 2023, but the practical changes to how flexible working requests are made and handled took effect later, on 6 April 2024. It's worth being precise about what the Act actually did, because it's often summarised loosely as "flexible working became a day-one right," which is true but only part of the picture. In full, the changes that came into force on 6 April 2024 were:

• ✓ The right to request flexible working became a day-one right — the previous requirement to have worked for an employer for 26 weeks before making a request was removed entirely
• ✓ The number of statutory requests an employee can make increased from one to two in any rolling 12-month period
• ✓ The maximum time an employer has to respond to a request — including dealing with any appeal — was reduced from three months to two months, unless a longer period is agreed in writing
• ✓ Employees are no longer required to explain in their application how their request might affect the business and how that impact could be addressed
• ✓ Employers must consult with the employee before refusing a request — a new, distinct legal duty that didn't exist in the same form before this Act

What the Act did not change is arguably just as important to understand: the underlying list of statutory business reasons an employer can rely on to refuse a request stayed the same, and the right itself remains what it has always been — a right to make a request and have it properly and reasonably considered, not a guaranteed right to be granted the specific pattern you ask for. An employer can still say no. What changed is how quickly they have to decide, how many chances you get to ask, what you have to include in your application, and the fact that they now have to talk to you before turning you down.

What actually counts as "flexible working"

Flexible working is a broad legal concept, not a synonym for "part-time." Understanding the full range of what you can actually request matters, because many people default to assuming their only option is to ask for fewer hours, when a different arrangement at the same hours might solve the underlying childcare problem just as well, or better, without the pay reduction that comes with reducing hours.

• ✓ Part-time working — reducing your contracted hours
• ✓ Compressed hours — working your normal full-time hours over fewer, longer days (for example, four longer shifts instead of five standard ones)
• ✓ Job sharing — splitting one post between two people
• ✓ Staggered hours — different start and finish times from colleagues in the same team, still working the same total hours
• ✓ Term-time-only working — working only during school term weeks, with no pay (or reduced pay, depending on the contractual arrangement) during school holidays
• ✓ Compressed or fixed shift-pattern requests — for NHS staff specifically, this very often means asking for a fixed rather than rotating pattern, asking not to be rostered for nights, or asking to avoid specific days
• ✓ Home or hybrid working, where the nature of the role genuinely allows it — less relevant to most hands-on clinical roles, but a real option for many NHS administrative, managerial and some clinical-support roles

For NHS staff on a rotating clinical rota, the shift-pattern request is usually the one that matters most for childcare — a request to move from a rotating pattern to a fixed pattern, to be excluded from night shifts, or to work a specific combination of days, is a form of flexible working request in exactly the same legal sense as asking to reduce your hours, and it goes through the same statutory (or, for NHS staff, contractual) process described below.

The request and response process, step by step

Valid reasons your trust can rely on to refuse a request

An employer, NHS trust included, can only lawfully refuse a statutory flexible working request by relying on one or more of a fixed, defined list of business reasons set out in the Employment Rights Act 1996. The 2023 Act didn't change this list — it's the same set of grounds that existed before, though the new consultation duty means a trust now has to engage with you about which of these grounds actually applies, rather than simply citing one in a written refusal with no further discussion. The recognised reasons are:

• ✓ The burden of additional costs
• ✓ A detrimental effect on the ability to meet patient or service demand
• ✓ An inability to reorganise work among existing staff
• ✓ An inability to recruit additional staff
• ✓ A detrimental impact on quality
• ✓ A detrimental impact on performance
• ✓ Insufficiency of work during the periods the employee proposes to work
• ✓ Planned structural changes to the service or department

A refusal has to be genuinely grounded in one or more of these reasons, and has to be a reasonable application of that reason to your specific circumstances — a trust citing "detrimental impact on quality" without being able to explain, if challenged, how your specific request would actually cause that impact is on genuinely shaky ground. Declining a request simply because it's unusual, because "we've never done that before," or because it's mildly inconvenient to the existing rota, without reference to one of the reasons above, is not by itself a lawful basis for refusal — though in practice, several of these reasons (particularly the ability to reorganise work among existing staff, and the effect on meeting patient demand) are broad enough that a well-run department can often make a reasonable case under one of them for many genuine operational constraints. This is exactly why the quality of your own request, and how you engage with the consultation conversation, genuinely matters — a request that anticipates and addresses the department's likely concerns tends to fare better than one that doesn't.

NHS staff already had a stronger right — since 2021, before this Act existed

This is one of the most important, and most often missed, points for NHS staff specifically: you were not waiting for the Employment Relations (Flexible Working) Act 2023 to get a day-one right to request flexible working. A change to the NHS Terms and Conditions of Service Handbook that took effect on 13 September 2021 — roughly two and a half years before the general statutory right became day-one for all UK employees — already gave every directly employed NHS employee a contractual day-one right to request flexible working, for any reason, with no limit on the number of requests you can make. That NHS contractual right is, on both of those specific points, more generous than the general statutory minimum described above even after the 2023 Act's improvements: the general statutory right caps you at two requests in 12 months, while the NHS contractual right — as long as it remains in your trust's terms — doesn't cap the number at all.

NHS Employers has also run a broader initiative, branded "Think Flex First," which aims to build flexibility into how services and roles are designed from the outset — for example, building genuinely flexible rostering options into a job from the point it's advertised — rather than treating flexibility purely as something an individual member of staff has to request after the fact. The policy framework behind this sets out principles for how NHS managers should approach flexible working requests, generally starting from a position that a post should be considered for flexible working unless there's a clear, demonstrable operational reason why that isn't practicable — though it's explicit that this is a presumption in favour of considering flexibility properly, not an automatic entitlement to whatever pattern is requested.

Putting together a request that's actually likely to succeed

Knowing the legal minimum is one thing; putting together a request that a busy department genuinely engages with and is more likely to approve is another. A few practical points, drawn from how the process actually plays out rather than just what the law technically requires:

• ✓ Be specific about exactly what you're asking for and from what date, rather than a vague request for 'more flexibility' — 'no night shifts' or 'a fixed early/late pattern rather than a rotating one' is easier for a manager to properly consider than an open-ended ask
• ✓ Even though you're no longer required to, consider including your own thinking on how the change could work in practice — this often genuinely helps, even though it's optional under the current rules
• ✓ Use your trust's own flexible working request form if one exists, so your request is correctly logged against the statutory or contractual timeline from the date it's actually received
• ✓ Engage properly with the consultation conversation your manager is now required to offer — it's a genuine opportunity to address specific concerns before a final decision, not just a formality to get through
• ✓ If your request is time-sensitive (for example, tied to a nursery place starting on a specific date, or a partner's own rota change), say so clearly and as early as possible, since the two-month statutory window is a maximum, not a guaranteed turnaround time
• ✓ Keep a written record of your request, any consultation meeting, and the eventual decision — useful if you need to raise a grievance or query the process later
• ✓ If your request is refused, ask specifically which statutory business reason the refusal relies on, and whether an alternative, partial arrangement might be considered instead of an outright no

It's also worth thinking about timing relative to your own childcare planning. A request tied to returning from maternity, paternity, adoption or shared parental leave often benefits from being raised well before your actual return date, precisely because the statutory response window can run up to two months — leaving it until shortly before you're due back risks your new pattern not being confirmed until after you've already returned to your old one. Our guide, NHS Returning to Work After Maternity Leave Explained, covers the wider rights and practical planning around a return to work in more depth, and pairs naturally with a flexible working request timed around that return. Once you know broadly what pattern you're hoping for, our guide on Childcare on a Part-Time NHS Contract covers the specific childcare pitfalls — and opportunities — that come with a part-time or compressed pattern once it's actually granted.

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If a request is refused: your realistic next steps

If a request is refused, the first thing worth checking isn't whether you're unhappy with the outcome — it's whether the process itself was followed correctly. Did your employer actually consult with you before refusing, as the 2023 Act now requires? Did they respond within the statutory two-month window (or your trust's own, potentially shorter, policy timeline)? Is the stated reason for refusal genuinely one of the recognised statutory business reasons, explained with actual reference to your specific circumstances, rather than a generic or unrelated justification? A process failure on any of these points is often a stronger basis for challenging a decision than arguing about the underlying business reasoning itself.

From there, realistic next steps generally run in this order: raise it informally with your manager first, if you haven't already had a proper opportunity to discuss alternatives; escalate to a formal grievance through your trust's own grievance procedure if the informal route doesn't resolve it; get advice from your trade union representative, since NHS staff are very widely unionised and most recognised unions provide this kind of individual case support as a normal part of membership; and, as a last resort, an employment tribunal claim, bearing in mind that a tribunal's role is generally to assess whether the process was handled correctly and lawfully, rather than to substitute its own judgement for your manager's on the underlying operational decision. Acas (the Advisory, Conciliation and Arbitration Service) also publishes a statutory Code of Practice on flexible working requests and offers free, impartial guidance, and is often a useful, lower-stakes first port of call before any formal escalation.

How this fits with the rest of FrontlinePay's Childcare and Maternity content

A flexible working request is one lever among several for making an NHS rota actually work around childcare — it sits alongside, rather than replaces, the practical childcare options and money-saving schemes covered elsewhere in this cluster. If a flexible working request doesn't get you the pattern you need, or while you're waiting for a decision, our guide on Finding Childcare for Night Shifts and Weekends covers the realistic paid and family-based options for covering the hours a standard childcare provider can't reach. And whatever working pattern you end up on, the NHS Childcare Cost Calculator can help you work out what it would actually mean for your take-home pay and childcare costs, so a flexible working decision is made with real numbers rather than a guess.

This guide is independent, general information only — not legal advice — and FrontlinePay is not affiliated with NHS England, DHSC, NHS Employers, Acas, or any individual NHS trust. Employment law and individual trust policies change over time; always check your own trust's current flexible working policy and, for advice on your own situation, speak to HR, your trade union representative, or a qualified employment adviser.

Frequently asked questions

Frequently asked questions

What is the Employment Relations (Flexible Working) Act 2023, in plain terms? +

It's a UK law that strengthened employees' existing right to request flexible working, with the changes to how requests are made and handled coming into force on 6 April 2024. The headline change most people have heard of is that the right to request became a 'day-one' right — you no longer need 26 weeks' service with an employer before you can ask. Alongside that, the Act increased the number of statutory requests you can make in a 12-month period from one to two, shortened the employer's maximum statutory response window from three months to two, removed the previous requirement for you to explain in your application how your request might affect the business and how that could be addressed, and introduced a new duty on employers to consult with you before refusing a request. It did not change the underlying list of statutory business reasons an employer can rely on to refuse a request, and it remains a right to request and have that request properly considered — not a guaranteed right to the specific pattern you ask for.

Does the day-one right mean I can request flexible working literally on my first day of an NHS job? +

Under the general UK statutory right, yes — there's no minimum length of service required before you can make a request, so in principle nothing stops you submitting one on your first day. In practice, NHS staff are in an even stronger position than the general statutory minimum: NHS Terms and Conditions have included a contractual day-one right to request flexible working, for any reason, with no limit on the number of requests, since a change to the NHS Terms and Conditions Handbook that took effect on 13 September 2021 — meaningfully before the general statutory right became day-one for all UK employees in April 2024. Whether it's tactically wise to submit a request on literal day one is a separate question from whether you're legally entitled to — a request submitted after you've had a chance to understand your actual rota and department's working patterns is often more likely to be well-targeted, even though nothing in the right itself requires you to wait.

How many flexible working requests am I allowed to make in a year under the general statutory right? +

Under the Employment Rights Act 1996 as amended by the 2023 Act, employees can make up to two statutory flexible working requests in any rolling 12-month period, an increase from the single request allowed before the 2023 Act's changes took effect on 6 April 2024. It's worth being aware that NHS Terms and Conditions go further again for NHS staff specifically: the NHS's own day-one contractual right, in place since September 2021, doesn't cap the number of requests you can make at all. Always check your own trust's specific flexible working policy for the precise current wording, since it's the more generous of the two rights that will actually apply to most directly employed NHS staff.

How long does my employer have to respond to a flexible working request? +

Under the general statutory right as amended by the 2023 Act, an employer must respond to a flexible working request — including dealing with any appeal — within two months of receiving it, down from the previous three-month statutory maximum, unless you and your employer agree in writing to extend that period. This is a maximum, not a target: many requests, including many at NHS trusts with an established flexible working process, are dealt with considerably faster than the full two months. If you haven't heard anything as the two-month mark approaches, it's entirely reasonable to chase your manager or HR directly, and worth checking your own trust's specific policy, since some trusts commit to responding faster than the statutory maximum as a matter of local policy.

Do I have to explain how my flexible working request would affect my employer when I apply? +

No — this is one of the specific things the 2023 Act's changes removed. Before 6 April 2024, an employee submitting a flexible working request was expected to set out, in their application, how they thought the change might affect the business and how any impact might be addressed. That requirement has been removed. You can still choose to include your own thinking on how the request could work in practice if you think it strengthens your case — and doing so is often still a genuinely good idea tactically — but you are no longer legally required to do the employer's impact analysis for them as a condition of a valid request. The responsibility for showing a refusal is reasonably grounded in one of the statutory business reasons sits with the employer, not with you.

Can my trust just say no to my flexible working request without giving a proper reason? +

No, not lawfully. An employer can only refuse a statutory flexible working request by relying on one or more of a specific, defined list of business reasons set out in the Employment Rights Act 1996 — reasons such as the burden of additional costs, an inability to reorganise work among existing staff, a detrimental effect on the ability to meet customer or patient demand, a detrimental impact on quality or performance, an inability to recruit additional staff, insufficient work during the periods you're proposing to work, or planned structural changes to the business. A refusal has to be genuinely grounded in one of these reasons and has to be reasonable in the circumstances — declining a request simply because it's inconvenient, unusual, or against normal departmental practice, without reference to one of these specific grounds, isn't a lawful basis for refusal. The 2023 Act also introduced a new requirement for your employer to consult with you — generally meaning a genuine conversation or meeting about your request — before refusing it at all, which didn't exist as a formal legal duty before April 2024.

What counts as 'flexible working' beyond just reducing my hours? +

Flexible working is a broad statutory concept that covers far more than simply working part-time. It includes changes to when you work (staggered start and finish times, compressed hours where your normal full-time hours are worked over fewer, longer days), where you work (home or hybrid working, where the role allows it), how much you work (part-time hours, term-time-only working), and how a role is structured (job sharing, where two people share one post). For NHS staff specifically, it very often also includes a request about your actual shift pattern — for example, asking not to be rostered for night shifts, asking for a fixed rather than rotating pattern, or asking to avoid particular days — since a change to shift pattern is itself a form of flexible working, not a separate category outside the statutory right.

Did NHS staff already have flexible working rights before this 2023 Act, or is this all new? +

NHS staff already had a stronger-than-statutory-minimum right before the 2023 Act existed. A change to the NHS Terms and Conditions of Service Handbook that took effect on 13 September 2021 gave every directly employed NHS employee a contractual day-one right to request flexible working, for any reason, with no cap on the number of requests — years ahead of the day-one right becoming standard for all UK employees under the 2023 Act's April 2024 changes. NHS Employers has also run its own 'Think Flex First' initiative, aiming to build flexibility into how roles and services are designed from the outset rather than only responding to individual requests after the fact. In short: the 2023 Act closed the gap between the general statutory minimum and where NHS terms and conditions already were, rather than creating an entirely new right for NHS staff from nothing.

If my flexible working request is refused, what can I actually do? +

First, check that your employer has actually followed the correct process — genuinely consulted with you before refusing, responded within the statutory (or your trust's own, if shorter) time limit, and given a refusal reason that's actually one of the recognised statutory business reasons rather than a vague or unrelated justification. If the process wasn't followed properly, or the stated reason doesn't hold up, you may have grounds to raise a formal grievance internally, and ultimately a route to an employment tribunal in some circumstances, though a tribunal generally can't overturn the decision itself and order your employer to grant the request — its role is largely to assess whether the process was handled correctly. Getting advice from your trade union representative (NHS staff are very widely unionised, and most recognised unions offer this kind of individual case support) or from Acas before escalating formally is generally a sensible first step, and often more useful than going straight to a tribunal claim.

Is FrontlinePay providing legal advice about my specific flexible working request? +

No. FrontlinePay is an independent publisher with no affiliation to NHS England, NHS Employers, DHSC, Acas, or any individual NHS trust. This guide explains the general statutory right and NHS-specific contractual position as accurately and currently as we can, sourced from GOV.UK, Acas, and NHS Employers' own published guidance, but it isn't personalised legal advice, and employment law and specific trust policies can and do change. For advice on your own specific circumstances, speak to your trust's HR team, your trade union representative, or a qualified employment law adviser, and always check your own trust's current flexible working policy directly rather than relying solely on the general position described here.