What happened
If an employer receives a flexible working request, it must consider it reasonably and complete the flexible working process, including any appeal, within a “decision period” of three months beginning with the date of the request. The employer and employee can however agree to extend the decision period. An employee can only bring a claim in the employment tribunal about a breach of the flexible working requirements after the relevant decision period has expired.
The issue for the EAT in Walsh v Network Rail Infrastructure Ltd was whether an employee had impliedly agreed to an extension of the decision period when he agreed to attend an appeal hearing that was scheduled to take place more than three months after he made his initial flexible working request. If he had, by lodging his tribunal claim before the appeal had taken place he had acted too soon and the tribunal would not have jurisdiction to hear the complaint. The delay in fixing the appeal was neither party’s fault.
The EAT overturned the employment tribunal’s finding that the employee had implicitly agreed to extend the decision period when he agreed to attend the appeal outside the normal three month period. It did not follow that, by agreeing to attend the appeal, he had also agreed to an extension of the decision period. For a valid extension to the decision period, the employee would have to agree both to this and to the duration of any extension. As the employee brought his claim more than three months after his initial flexible working request, and no extension had been agreed, the tribunal should have considered the clam on its merits.
Next steps
Flexible working tribunal claims are still relatively uncommon, perhaps because the maximum penalty for a breach of the procedural requirements is low. However, this decision highlights the importance of making sure that an employee has explicitly agreed to extend the decision period if it is not going to be possible to complete all stages of an employer’s flexible working request procedure within three months.
It would be prudent to get the employee to confirm their agreement in writing and to agree when the extended period will come to an end, bearing in mind that an employer will need a further period after an appeal hearing to reach a final decision. This will be even more important in future if the government reduces the time frame for considering flexible working requests, as proposed in its recent flexible working consultation paper.
Authored by Jo Broadbent and Stefan Martin.
